2017 (11) TMI 1441 - AT - Service Tax

Maintainability of appeal - non-compliance with pre-deposit - Section 35F of the CEA, 1944 - Held that - The Registry has not issued defect notice to the appellants before numbering the appeal to comply with the mandatory pre-deposit. Perhaps Registry was carried away by the wrong mention of figures in column 13 & 14 of the ST-5 Form. The appeal has been erroneously numbered by the Registry and come up for hearing on the petition for condonation of delay - it is fit to give time to the appellant to comply with the mandatory pre-deposit as the appellant was not put to notice about such non-compliance - appellant is directed to comply with the mandatory pre-deposit within two weeks from today and report compliance on 20.09.2017.

Summary

Issues: Non-compliance with mandatory pre-deposit under Section 35F of the Central Excise Act, 1944; Incorrect mention of figures in ST-5 Form; Registry's error in numbering the appeal without issuing a defect notice.

Analysis:
1. Non-Compliance with Mandatory Pre-Deposit: The appellant failed to pay the mandatory pre-deposit of 7.5% of the confirmed demand as required under Section 35F of the Central Excise Act. The impugned order confirmed a service tax demand of &8377; 47,79,771/-, yet the appellant only paid &8377; 32,18,458/-, which was incorrectly considered by the adjudicating authority as a pre-deposit. The Tribunal noted the appellant's non-compliance and directed them to fulfill the pre-deposit within two weeks to avoid dismissal of the appeal.

2. Incorrect Mention of Figures in ST-5 Form: The discrepancy in the figures mentioned in columns 13 and 14 of the ST-5 Form led to confusion regarding the amount paid by the appellant and the actual confirmed demand. The appellant argued that the amount mentioned in column 14 was sufficient compliance with the pre-deposit requirements, but the Tribunal clarified that the correct pre-deposit should be 7.5% of the confirmed demand, which the appellant had not fulfilled.

3. Registry's Error in Numbering the Appeal: The Registry erroneously numbered the appeal without issuing a defect notice to the appellant regarding the non-compliance with the mandatory pre-deposit. The Tribunal acknowledged this error and granted the appellant additional time to rectify the non-compliance by making the required pre-deposit within two weeks. Failure to comply would result in the dismissal of the appeal without further notice. The Tribunal emphasized the importance of accurate figures and compliance with statutory provisions to avoid procedural errors.