2008 (9) TMI 191 - AT - Service Tax

Commissioner (Appeals) dismissed the appeal for non-compliance with pre-deposit direction of the balance amount of Rs. 75,000/- appellant has already deposited an amount of Rs. 90,000/- and contesting the balance amount on the ground that it is beyond the terms of SCN - prayer for waiver of pre-deposit of balance amount of Rs. 75,000/- is accepted - there shall be no further deposit in the matter - matter is remanded to the Commissioner (Appeals) for deciding the case on merits

Summary

Issues:
1. Dismissal of appeal for non-deposit of balance amount under Central Excise Act.
2. Contesting the balance amount on merit beyond the terms of show cause notice.
3. Availment of credit of service tax paid for transportation on excisable goods.
4. Request for remand to Commissioner (Appeals) for deciding the case on merits.
5. Consideration of Tribunal rulings and time bar in the case.
6. Acceptance of waiver for pre-deposit of balance amount.

Analysis:
1. The appeal before the Appellate Tribunal arose from the dismissal of the appeal by the Commissioner (Appeals) under Section 35 of the Central Excise Act due to the non-deposit of the balance amount of Rs. 75,000 out of the total amount of Rs. 1,68,124. The appellant had already deposited Rs. 90,000 and contested the remaining amount on the grounds of having a strong case on merit. The Commissioner had directed the appellant to pre-deposit the balance amount and rejected the Miscellaneous application for modification of the interim stay order.

2. The appellant contended that the balance amount was not properly calculated by the Revenue and was confirmed beyond the terms of the show cause notice. The issue revolved around the availment of credit of service tax paid for transportation on excisable goods. The appellant requested a remand to the Commissioner (Appeals) to decide the case on merits, citing Tribunal rulings in their favor. The Tribunal found merit in the appellant's arguments and accepted the waiver for pre-deposit of the balance amount of Rs. 75,000.

3. The learned Joint Commissioner of Central Excise opposed the appellant's prayer, asserting that the interim order directing the deposit of the balance amount was correct and necessary for contesting the case. However, after careful consideration, the Tribunal observed that the appellant had already deposited a significant amount and was contesting the balance amount on valid grounds, including arguments related to time bar and reliance on Tribunal rulings and an Apex Court judgment.

4. The Tribunal, therefore, remanded the matter to the Commissioner (Appeals) for a fresh decision on merits within a specified period. The Commissioner was directed to consider all aspects raised by the appellant, provide an opportunity for a hearing, and ensure adherence to the principles of natural justice. The Tribunal emphasized that no further deposit was required in the case, signaling a favorable outcome for the appellant in terms of the waiver for the balance amount and the opportunity for a fair consideration of the case on its merits.