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2008 (11) TMI 160 - AT - Service TaxThe common order has proceeded to decide the matter on merit when there was failure to make pre-deposit under section 35F of CEA, 1944 r.w. Finance Act, 1994. We surprise that when there was pre-requisite of the pre-deposit to consider an appeal for no absolute right in statute for appeal and the right is conditional by pre-deposit, how the learned appellate authority below proceeded to decide the matter on merit. This has resulted in total failure of justice prejudicing interest of Revenue - case remanded
Issues: Failure to make pre-deposit for appeal, consideration of appeal on merit without pre-deposit, re-consideration of pre-deposit by lower appellate authority.
In this case, the appellants' appeal was not admitted by the Learned Commissioner (Appeals) due to the failure to make a pre-deposit. The appellants' Counsel argued that the matter should be reconsidered by the same authority. On the other hand, the Learned DR contended that the order-in-appeal was justified as no pre-deposit was made. The Tribunal observed that the common order proceeded to decide the matter on merit despite the requirement of pre-deposit under the Central Excise Act and Finance Act. The Tribunal highlighted the conditional nature of the right to appeal, emphasizing the necessity of pre-deposit. The Tribunal criticized the appellate authority for proceeding to decide on merit without the pre-deposit, leading to a failure of justice and prejudice to the Revenue's interest. The Counsel relied on a Tribunal judgment in another case and argued for the appellant's consideration regarding pre-deposit. The Tribunal, without expressing an opinion, remanded the matter back to the lower appellate authority for re-consideration of the pre-deposit issue. The lower authority was directed to review the pre-deposit based on the law and provide a reasonable opportunity for the appellant to present their case. The Tribunal instructed the lower authority to dispose of the matter in accordance with the law after re-evaluating the pre-deposit issue. Ultimately, both the stay applications and appeals were disposed of by the Tribunal.
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