2017 (3) TMI 560 - AT - Service Tax

Condonation of delay - pre-deposit - Section 35F of the CEA - the appellant had filed a letter dated 02.09.2014 requesting for further time to make pre-deposit - Held that - the appeal has been filed before Commissioner (Appeals) during the period when the mandatory deposit was introduced. The Commissioner (Appeals) ought to have granted a further opportunity to make the pre-deposit as requested by the appellant. As the appeal has been already filed, further adjournment for complying with the mandatory pre-deposit would not make the appeal time barred - as the appellant was not given reasonable time to comply with the mandatory pre-deposit, during the transitional period when the amendment was introduced, the appeal can be remanded to the Commissioner (Appeals) - appeal allowed by way of remand.

Summary

Issues: Appeal against dismissal for noncompliance of mandatory pre-deposit, request for further time to make pre-deposit, consideration of appeal on merits.

In this case, the appellant filed an appeal against the order passed by the Commissioner (Appeals) who dismissed the appeal for noncompliance of the mandatory pre-deposit. The Commissioner (Appeals) observed that the appellant had requested for further time to make the pre-deposit, but held that granting further time would exceed the permissible delay condonation period of 30 days. The Commissioner (Appeals) proceeded to dispose of the appeal without granting further time, which the appellant contested. The appellant had filed the appeal after the introduction of the mandatory pre-deposit requirement on 06.08.2014. The appellant requested for more time to comply with the pre-deposit, but the Commissioner (Appeals) did not allow it and dismissed the appeal.

The Tribunal noted that the appellant had already deposited the mandatory pre-deposit while filing the appeal before them. Considering that the appellant was not given reasonable time to comply with the mandatory pre-deposit during the transitional period of the amendment, the Tribunal remanded the case back to the Commissioner (Appeals). The Tribunal directed that since the pre-deposit of 75% had already been paid, the Commissioner (Appeals) should not insist on further pre-deposit and should consider the appeal on its merits. The impugned order was set aside, and the appeal was allowed by way of remand. The Tribunal emphasized that the appeal should not be time-barred due to the consideration of the mandatory pre-deposit issue.