2015 (9) TMI 1096 - AT - Service Tax

Waiver of pre deposit - Section 35F - Penalty u/s 77 - Held that - In this appeal the LAA has dismissed the appeal for non-compliance of predeposit, even though appellate authority mentioned that appeal is decided on merit. The appellate authority has not discussed the issue on merits and dismissed the appeal for non-compliance. Therefore the case to be remitted to L.A.A. We also find that appellant made a submissions before the lower authorities on limitation which was not examined. Taking into overall facts and circumstances, we direct the appellant to make a deposit of ₹ 5,00,000 within 8 weeks and to report compliance by 19.8.2015. Upon compliance, they shall produce the proof of deposit before Commissioner (Appeals) who shall decide the appeal on merits - Decided in favour of assessee.

Issues:
1. Dismissal of appeal for non-compliance of predeposit under Section 35F read with Section 83 of the Finance Act.
2. Imposition of service tax, interest, and penalties under Section 77.
3. Challenge of the Lower Appellate Authority's (LAA) order before the Tribunal.
4. Consideration of predeposit issue by the Tribunal.
5. Appeal based on the limitation of the demand.

Analysis:
1. The appellant filed an appeal against the Commissioner (Appeals) order, which was dismissed due to non-compliance of predeposit under Section 35F read with Section 83 of the Finance Act. The adjudicating authority confirmed the demand of service tax, interest, and penalties under Section 77. The LAA ordered a predeposit of 50% of tax and penalty, leading to a modification petition by the appellant. The Commissioner (Appeals) dismissed the appeal for non-compliance and on merit. The Tribunal set aside the LAA's order regarding the appeal's dismissal on merit but upheld the order for predeposit. The High Court remanded the case to the Tribunal to reconsider the issue of predeposit, emphasizing that the Tribunal should not adjudicate upon the merits of the appeal in such cases.

2. The Tribunal failed to consider the pre-deposit issue thoroughly as required by law. The order of the Appellate Authority was summarily upheld without proper examination of the pre-deposit aspect. The Tribunal's oversight in not addressing the pre-deposit issue led to the appellant challenging the decision before the High Court. The Court directed the Tribunal to reconsider the pre-deposit matter, highlighting the importance of proper evaluation in such cases.

3. The appellant argued that a significant portion of the demand was time-barred, citing a similar issue where a Show Cause Notice (SCN) was dropped for an earlier period. The appellant's submissions on the limitation issue were not examined by the lower authorities. The Tribunal noted the lack of discussion on the merits of the case by the appellate authority and remitted the matter back to the LAA for proper consideration. The appellant was directed to make a deposit within a specified timeframe for further proceedings on the appeal.

In conclusion, the judgment addressed various issues, including predeposit compliance, imposition of taxes and penalties, the Tribunal's oversight in evaluating pre-deposit matters, and the appellant's argument on the limitation of the demand. The decision emphasized the importance of proper consideration of pre-deposit issues and directed the appellant to comply with the deposit requirements for the appeal to proceed on its merits.

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