2021 (5) TMI 352 - AT - Service Tax

Maintainability of application - non-compliance with the requirement of pre-deposit - Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 - HELD THAT - As the appellant has made the compliance of the condition of pre-deposit as prescribed under Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944, therefore, the impugned order qua dismissal of appeal on the ground of non-compliance of the provisions of Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 for non deposit of mandatory pre-deposit is set aside. The ld. AR also submitted that they want to file cross examination but as the impugned order is only discussed about the dismissal of appeal for non-compliance of mandatory pre-deposit, therefore, the cross examination shall not help the ld. AR to raise the issue of non-consideration of limitation by ld. Commissioner (Appeals) as Revenue has not challenged the impugned order. Therefore, the request of ld. AR to file the cross examination is rejected. Matter remanded back to the ld. Commissioner (Appeals) to decide the issue only on merits in view of various judicial pronouncements on the issue - appeal allowed by way of remand.

Summary

Issues: Appeal against dismissal for non-compliance of pre-deposit provisions; Delay in filing appeal; Consideration of limitation aspect by Commissioner (Appeals); Cross-examination request; Remand for deciding on merits.

In this case, the appellant appealed against an order where the Commissioner (Appeals) dismissed their appeal due to non-compliance with the pre-deposit provisions of Section 83 of the Finance Act, 1994, and Section 35F of the Central Excise Act, 1944. The authorized representative for the respondent argued that there was a significant delay in filing the appeal, rendering it time-barred. The representative also pointed out that the Commissioner (Appeals) did not address the issue of delay in the original appeal. Despite the absence of the appellant, the Tribunal decided to consider the appeal in the interest of justice. Since the appellant had fulfilled the pre-deposit requirement, the Tribunal set aside the dismissal based on non-compliance with the pre-deposit provisions.

Moreover, the respondent's representative contended that the appellant had not filed the appeal within the specified time frame before the Commissioner (Appeals), but no appeal had been lodged by the Revenue challenging the Commissioner's decision regarding the time limitation issue. Consequently, the Commissioner's decision on the limitation issue was deemed final. Additionally, as the Revenue failed to prove timely receipt of the impugned order by the appellant, any delay in filing the appeal before the Tribunal was excused. The request for cross-examination was denied since the original order only addressed the dismissal of the appeal due to non-compliance with the pre-deposit requirement, and the Revenue did not contest this decision.

Furthermore, as the Commissioner (Appeals) had not addressed the merits of the case, the Tribunal decided to remand the matter back to the Commissioner for a decision solely on the merits. The Tribunal emphasized that the issue of limitation had already been settled by previous Tribunal decisions. The Commissioner (Appeals) was instructed to decide on the appeal's merits within 90 days of receiving the Tribunal's order. Ultimately, the appeal was disposed of by way of remand for further consideration on the merits.