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2014 (12) TMI 835 - HC - Service TaxWaiver of pre-deposit - tribunal refused to waive the pre-deposit - prima facie case is in favor of assessee or not - undue hardship - construct the Petrol Pump, Canopies, Bunks at retail outlet - It was admitted that the service provided by them are covered in the Service Tax net but due to lack of knowledge, they did not charge the service tax against the works done during the year 2004-05, 2005-06 and 2006-07 - Held that - Power of commissioner (Appeals) to condone the delay beyond 3 months - Held that - In view of the settled law on the issue that Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond three months after prescribed period of limitation, which is also of three months, no exception can be taken to dismissal of the appeal by the Commissioner (Appeals), as barred by limitation. In view of settled legal proposition, the appellate Tribunal was not left with any authority or jurisdiction to interfere in the matter. In such view of the matter, it cannot be said that the appellant has any prima facie case, much less a strong, prima facie, case for waiver so as to dispense with the pre-deposit of the outstanding demand. Once the appellant did not have any prima facie case, there was no reason or occasion for the Tribunal to consider the issue of any hardship to the appellant in making the deposit. - Decided against the assessee.
Issues Involved:
1. Demand and recovery of unpaid Service Tax. 2. Demand and recovery of interest on unpaid Service Tax. 3. Imposition of penalty under Section 76 of the Finance Act, 1994. 4. Imposition of penalty under Section 78 of the Finance Act, 1994. 5. Imposition of penalty under Section 77 of the Finance Act, 1994. 6. Demand and recovery of late fee under Rule 7(C) of the Service Tax Rules, 1994. 7. Application for waiver of pre-deposit of outstanding demand. 8. Timeliness and jurisdiction for filing appeals and condonation of delay. Detailed Analysis: 1. Demand and Recovery of Unpaid Service Tax: The appellant was issued a notice on 21.04.2010 to show cause why the unpaid Service Tax amounting to Rs. 22,86,777.00 should not be demanded and recovered under the proviso to Section 73(1) of the Finance Act, 1994. The appellant admitted liability for the unpaid Service Tax, attributing non-payment to a lack of knowledge and requested leniency. 2. Demand and Recovery of Interest on Unpaid Service Tax: The show cause notice also demanded interest on the unpaid Service Tax under Section 75 of the Finance Act, 1994. The Commissioner of Central Excise and Service Tax, Lucknow, confirmed the demand for interest at the applicable rate on the unpaid Service Tax. 3. Imposition of Penalty under Section 76 of the Finance Act, 1994: A penalty was imposed under Section 76 for contravention of Section 68 read with Rule 6 of the Service Tax Rules, 1994. The penalty was calculated at Rs. 100 per day (up to 17.04.2006) and Rs. 200 per day thereafter, subject to a maximum of the Service Tax amount involved. 4. Imposition of Penalty under Section 78 of the Finance Act, 1994: The appellant was also penalized under Section 78 for suppressing the facts and value of taxable service. The Commissioner confirmed the penalty amounting to Rs. 22,86,777.00. 5. Imposition of Penalty under Section 77 of the Finance Act, 1994: A penalty of Rs. 5,000 was imposed for violating the provisions of Section 69 read with Rule 4 of the Service Tax Rules, 1994. 6. Demand and Recovery of Late Fee under Rule 7(C) of the Service Tax Rules, 1994: A late fee of Rs. 2,000 was demanded under Rule 7(C) of the Service Tax Rules, 1994, read with Section 70(1) for contravention of Rule 7. 7. Application for Waiver of Pre-deposit of Outstanding Demand: The appellant filed an application under Section 35F of the Central Excise Act, 1944, seeking a waiver of the pre-deposit condition, arguing undue hardship and a strong prima facie case. The Tribunal found no prima facie case in favor of the appellant and dismissed the waiver application, directing the appellant to deposit the entire duty, interest, and penalty within four weeks. 8. Timeliness and Jurisdiction for Filing Appeals and Condonation of Delay: The appellant's appeal against the original order dated 30.11.2010 was filed on 19.07.2012, well beyond the three-month limitation period prescribed by Section 85 of the Finance Act, 1994. The Commissioner (Appeals) rejected the appeal as time-barred, and this decision was upheld by the Tribunal. The Supreme Court's ruling in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors. established that the Commissioner (Appeals) has no power to condone delays beyond the statutory period. Conclusion: The High Court upheld the Tribunal's decision, emphasizing that the right to appeal is statutory and subject to conditions like pre-deposit. The Court found no prima facie case for waiver of pre-deposit and dismissed the appeal, affirming the penalties and demands imposed by the Commissioner of Central Excise and Service Tax.
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