2016 (4) TMI 1079 - AT - Service Tax

Waiver of pre-deposit - Violation of the provisions of Section 35F of Central Excise Act, 1944 - Appellant neither filed stay application nor made pre-deposit - Demand alongwith interest and penalty confirmed on the ground that the appellant was not eligible for the benefit of exemption Notification No. 18/2009-ST dated 7.7.2009 - Appellant contended that it satisfied all the conditions of Notification No. 18/2009 except that it did not file EXP-2 return every six months of the financial year within 15 days of the completion of the said six months which is only a procedural requirement. Therefore the benefit of notification should not have been denied. Held that - it is evident that the said condition is a condition of exemption notification and therefore non-fulfilment thereof prima facie disentitles the appellant to the benefit of the said notification. In addition non-compliance with the provisions of Section 35F is prima facie a valid ground for rejection of the appellant s appeal before the Commissioner (Appeals). Therefore, prima facie, we do not find any infirmity in the impugned order and accordingly we order pre-deposit of entire impugned service tax liability along with interest within four weeks. - Waiver not granted

Issues:
1. Appeal against order-in-appeal rejecting appellant's appeal.
2. Violation of Section 35F of Central Excise Act, 1944.
3. Denial of benefit of exemption Notification No. 18/2009-ST.
4. Non-fulfillment of procedural requirement of filing EXP-2 return.
5. Validity of the impugned order.

Analysis:
1. The appeal was filed against the order-in-appeal dated 30.7.2013, which rejected the appellant's appeal against the order-in-original dated 29.6.2012. The rejection was based not only on merits but also on the violation of the provisions of Section 35F of the Central Excise Act, 1944. The primary adjudicating authority had confirmed the demand along with interest and penalty, stating that the appellant was not eligible for the benefit of exemption under Notification No. 18/2009-ST.

2. The appellant argued that it met all conditions of Notification No. 18/2009 except for the failure to file the EXP-2 return every six months within the specified time frame. The appellant contended that this was merely a procedural requirement and should not have led to the denial of the notification's benefit.

3. The Tribunal examined the contentions and noted that the condition of filing the return in Form EXP-2 every six months within fifteen days of completion was a crucial condition of the exemption notification. The non-fulfillment of this condition prima facie disentitled the appellant from the benefit of the notification. Additionally, the non-compliance with the provisions of Section 35F was considered a valid ground for the rejection of the appellant's appeal before the Commissioner (Appeals).

4. Consequently, the Tribunal found no infirmity in the impugned order. It ordered the pre-deposit of the entire service tax liability along with interest within four weeks. The compliance was to be reported by a specified date, and recovery of the remaining adjudicated liability was stayed pending the appeal. Failure to comply with the pre-deposit would result in the dismissal of the appeal for non-compliance.

This detailed analysis of the judgment highlights the issues raised, the arguments presented, and the Tribunal's reasoning leading to the decision on the appeal and the pre-deposit requirements.

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