2009 (4) TMI 152 - AT - Service Tax

Commercial or Industrial Services and Site Formation and Clearance Service - Notification No. 17/2005-ST, dated 7-6-2005 essential characteristic of the services rendered would be only to the construction of embankment - Appeal before commissioner (appeals) dismissed for non compliance of section 35F held that - that this is a fit case for remanding the matter to the Commissioner (Appeals) for examining the issue on merits without insisting any pre-deposit of the amount.

Summary

Issues: Appeal against dismissal for non-compliance of section 35F of the Central Excise Act.

The judgment by the Appellate Tribunal CESTAT, Bangalore, involved an appeal against Order-in-Original No. 48/2008 passed by the Commissioner of Customs, Excise & Service Tax (Appeals-II), Hyderabad, which was dismissed due to non-compliance of section 35F of the Central Excise Act. The Technical Member noted that the appellants had been engaged by a company for construction activities, and service tax had been demanded from them. The appellants argued that the services they provided were excluded from the scope of levy of service tax based on statutory provisions and notifications. They contended that the services rendered were limited to the construction of an embankment for a transport terminal, which was excluded from the definition of taxable services. The Tribunal found merit in the appellants' argument and decided to remand the matter back to the Commissioner (Appeals) for a fresh examination on merits without requiring any pre-deposit of the disputed amount. The Commissioner (Appeals) was directed to dispose of the matter within three months from the date of the order, providing the appellants with a hearing opportunity in accordance with the law. Consequently, the stay application and the appeal were allowed by way of remand to the Commissioner (Appeals) for further consideration.

This judgment highlights the importance of compliance with statutory provisions such as section 35F of the Central Excise Act, as non-compliance can lead to dismissal of appeals. It also underscores the significance of interpreting relevant statutory provisions and notifications to determine the applicability of service tax in specific cases. The Tribunal's decision to remand the matter for a fresh examination on merits showcases the principle of providing parties with a fair opportunity to present their case and have it considered in accordance with the law. The judgment serves as a reminder of the procedural and substantive aspects that need to be carefully assessed in tax-related appeals to ensure a just and equitable resolution of disputes.