2017 (7) TMI 1035 - AT - Service Tax

Maintainability of appeal - pre-deposit - non-compliance of the provisions of Section 35F of the Central Excise Act 1944 made applicable to Service Tax - Held that - It is a fact that the appellant had filed this appeal without mandatory pre-deposit as required under Section 35F of the Central Excise Act 1944 as made applicable to Service Tax vide Section 83 of the FA 1994 - the present appeal is not maintainable without the mandatory pre-deposit as provided under Section 35F of the Central Excise Act 1944 - appeal dismissed being not maintainable.

Summary

Issues:
- Appeal filed without mandatory pre-deposit under Section 35F of the Central Excise Act 1944
- Dispute regarding taxability only
- Commissioner (Appeals) rejecting the appeal for non-compliance of Section 35F
- Maintainability of the appeal without pre-deposit
- Interpretation of Section 35F and Section 83 of the Finance Act 1994

Analysis:
The appeal in question was filed without making a mandatory pre-deposit under Section 35F of the Central Excise Act 1944. The appellant argued that the issue at hand pertained only to taxability, not the Service Tax, and hence, the pre-deposit should not be mandatory. On the contrary, the learned AR contended that the appeal was not maintainable without the mandatory pre-deposit as required by Section 35F. The Commissioner (Appeals) had also rejected the appeal citing non-compliance with Section 35F.

Upon hearing both parties and examining the records, it was noted that the appellant indeed failed to make the mandatory pre-deposit as per Section 35F. The amended Section 35F clearly states that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal without the required deposit, depending on the nature of the dispute regarding duty or penalty. The Commissioner (Appeals) had considered the statutory provisions and referred to relevant decisions of the Tribunal and High Courts, emphasizing the necessity of pre-deposit post the amendment.

Considering the impugned order and statutory provisions, it was concluded that the present appeal was not maintainable without the mandatory pre-deposit under Section 35F. Therefore, the appeal was disposed of with a direction for the appellant to make the pre-deposit as required under Section 35F before the Commissioner (Appeals). Once the pre-deposit is made, the Commissioner (Appeals) would proceed to decide the appeal on its merits. The judgment was delivered on 17/05/2017, outlining the requirement for compliance with Section 35F before further consideration of the appeal.