2018 (5) TMI 975 - AT - Service Tax

Pre-deposit - failure to comply with the provisions of Section 35F - condonation of delay in filing appeal - Held that - the COD application which has been filed by the appellant is not maintainable before this Tribunal as the delay of 26 days have been caused before the Commissioner(Appeals) and not before this Tribunal - there is inordinate delay of around 9 months in filing appeal before this Tribunal for which the appellant has not filed COD application - appeal dismissed.

Summary

Issues:
1. Compliance with Section 35F for mandatory predeposit.
2. Delay in filing appeal before the Commissioner (Appeals) and the Tribunal.

Compliance with Section 35F for mandatory predeposit:
The appeal was filed against the order passed by the Commissioner (Appeals) rejecting the appeal due to non-compliance with the provisions of Section 35F. The appellant, a provider of personnel to a sugar factory, argued that the services provided did not fall under "Manpower Supply or Recruitment Agency" as concluded by the lower authority. The Commissioner (Appeals) found that the appellant had received the order-in-original on 27/05/2014 but filed the appeal on 15/09/2014, which exceeded the two-month period for filing an appeal as per Section 85 of the Finance Act, 1994. The Commissioner (Appeals) had the power to condone a delay of one month for sufficient cause, but the appellant did not provide any reason for the delay. Consequently, the appeal was dismissed for failure to comply with the provisions of Section 35F, which required a mandatory predeposit. The appellant then filed the present appeal along with an application seeking condonation of the 26-day delay in filing the appeal before the Commissioner (Appeals).

Delay in filing appeal before the Commissioner (Appeals) and the Tribunal:
During the proceedings, the appellant did not appear before the Tribunal despite prior notices. The learned AR argued that the COD application before the Tribunal was not maintainable as the delay of 26 days occurred before the Commissioner (Appeals) and not before the Tribunal. It was highlighted that the Commissioner (Appeals) had dismissed the appeal not solely due to the delay in filing but also for the failure to make the mandatory predeposit under Section 35F. The AR further pointed out an inordinate delay of around 9 months in filing the appeal before the Tribunal, without any application for condonation of delay. The Tribunal concluded that the COD application was not maintainable before them and dismissed it. Additionally, the appeal was also dismissed due to the significant delay in filing before the Tribunal without a COD application.

In conclusion, the Tribunal dismissed both the COD application and the appeal due to the failure to comply with the mandatory predeposit requirement under Section 35F, as well as the significant delay in filing the appeal before the Commissioner (Appeals) and the Tribunal without providing sufficient cause for the delays.