2016 (12) TMI 1180 - AT - Service Tax

Admissibility of appeal - pre-deposit - Section 35F of the Central Excise Act, 1944 - Learned Advocate relied upon the Apex Court s order dated 12.09.1967 in the case of Lakshmiratan Engineering Works Ltd. vs. Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur and Another 1967 (9) TMI 116 - SUPREME COURT OF INDIA , holding that appeal is maintainable even if deposit is not made - Held that - It is observed from proviso to Section 9 of U.P.Sales Tax Act, 1948 quoted in the case law relied upon by the Appellant, that only admitted tax liability was required to be paid by an assessee in Sales Tax. In the case of Section 35F of the Central Excise Act, 1944 mandatory deposit is not with respect to admitted duty liability of the Appellant. Therefore, the case law relied upon by the Appellant is not applicable - Appeal is not required to be entertained in view of the mandatory deposit not made under Section 35F of the Central Excise Act, 1944 - appeal not maintainable.

Summary

Issues:
Admission of appeal without mandatory deposit under Section 35F of the Central Excise Act, 1944.

Analysis:
The Appellant filed a Miscellaneous Application and Appeal against Order-in-Original No.69-70/COMMR/ST-II/KOL/2015-16 passed by the Commissioner of Service Tax-II, Kolkata. The Appellant argued that even if no mandatory deposit as required by Section 35F of the Central Excise Act is made, the Appeal should still be admitted. The Advocate for the Appellant relied on a case law from the Hon'ble Apex Court to support this argument. On the other hand, the Revenue contended that there is no exception under Section 35F, and the Appeal should not be entertained without the mandatory deposit.

Upon hearing both sides and examining the case records, it was noted that the mandatory deposit under Section 35F of the Central Excise Act, 1944, applicable to Service Tax matters, was not made by the Appellant. The Appellant's argument, based on the case law cited, was that only admitted tax liability needed to be paid, similar to the provisions of the U.P. Sales Tax Act, 1948. However, it was clarified that the mandatory deposit under Section 35F is not related to admitted duty liability. Therefore, the case law cited by the Appellant was deemed inapplicable. Consequently, the Miscellaneous Application and Appeal filed by the Appellant were disposed of due to non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, as applicable to Service Tax matters.

The judgment emphasized that the mandatory deposit under Section 35F is a prerequisite for the admission of an Appeal, and failure to comply with this requirement led to the dismissal of the Appellant's claims. The decision was based on the specific provisions of the law and the distinction between admitted tax liability and the mandatory deposit under Section 35F. The judgment highlighted the importance of statutory compliance in matters related to Service Tax appeals, underscoring the significance of fulfilling procedural requirements for the proper adjudication of cases before the Appellate Tribunal CESTAT KOLKATA.