2018 (8) TMI 1596 - AT - Service Tax

Maintainability of appeal - failure to meet the statutory requirement of pre-deposit payable under Section 35F of the Central Excise Act, 1994 - Held that - It is apparently clear that there was difference of opinion concerning service tax liability on which pre-deposit was calculated but having regard to the fact that incidence of tax has been met by the appellant by filing of returns for the said period coupled with payment of late fee in such filing of delayed returns, it can very well be said that predeposit of the required amount was no more a requirement for admitting the appeal by this Tribunal and therefore it has been admitted for hearing - In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable on ground of short-payment of pre-deposit which, in reality was not existing since the entire tax liability was met but might not have been brought to the notice of the Commissioner (Appeals). Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it is a fit case which necessitate re-adjudication by the Commissioner (Appeals) as under Section 35A (3), he is also empowered to make such further enquiry as may be necessary in order to pass such order as he may think proper and not to confine his views on the merits of the order of the adjudicating authority - The matter is remanded back to him for readjudication - Appeal allowed by way of remand.

Summary

Issues involved:
1. Maintainability of appeal due to insufficient pre-deposit under Section 35F of the Central Excise Act, 1994.
2. Assessment of tax liability and pre-deposit requirements.
3. Interpretation of statutory provisions regarding pre-deposit for appeal.
4. Jurisdiction of the Appellate Tribunal to entertain appeals based on pre-deposit.

Issue 1: Maintainability of appeal due to insufficient pre-deposit:
The appeal was directed against the order confirming tax demand, interest, and penalty imposed on the appellant by the Commissioner (Appeals) for not meeting the statutory requirement of pre-deposit under Section 35F of the Central Excise Act, 1994. The Commissioner (Appeals) rejected the appeal as not maintainable due to the appellant's failure to meet the mandated pre-deposit amount of 7.5% of the confirmed demand of ?10,33,005.

Issue 2: Assessment of tax liability and pre-deposit requirements:
The appellant argued that a significant portion of the tax liability, along with interest and late fee, had been paid before the appeal was filed, and the remaining amount was also paid before the hearing before the Commissioner (Appeals). The appellant contended that the tax liability should have been lower due to the nature of the service provided. However, the Department maintained that the pre-deposit was short, leading to the rejection of the appeal by the Commissioner (Appeals).

Issue 3: Interpretation of statutory provisions regarding pre-deposit for appeal:
The Commissioner (Appeals) relied on Section 35F of the Central Excise Act, 1994, which mandates a pre-deposit of 7.5% of the confirmed demand for filing an appeal. The appellant argued that since the tax liability was met through filing returns and payment of late fees, the pre-deposit should not have been a requirement. The Tribunal noted that the appeal was admitted for hearing based on the appellant's compliance with tax obligations.

Issue 4: Jurisdiction of the Appellate Tribunal to entertain appeals based on pre-deposit:
The Tribunal highlighted the need for the Commissioner (Appeals) to provide a decision with reasons on the merit of the appeal, especially regarding tax liability. Since the appeal was rejected based on pre-deposit rather than the merit of the case, the Tribunal allowed the appeal, set aside the Commissioner's order, and remanded the matter for re-adjudication based on the observations made.

In conclusion, the judgment focused on the importance of meeting pre-deposit requirements for filing appeals under the Central Excise Act, 1994, while also emphasizing the need for proper assessment of tax liability and consideration of the merit of the case beyond procedural aspects. The Tribunal's decision to remand the matter for re-adjudication underscores the significance of a comprehensive review of both procedural and substantive aspects in tax-related appeals.