2022 (12) TMI 910 - AT - Service Tax

Maintainability of appeal - noncompliance with the requirement of section 35F of Central Excise Act, 1944 - HELD THAT - The appeal filed before the Commissioner (Appeals) should be entertained for a decision on merits. Since he has not discussed the merits of the case and simply dismissed the appeal for noncompliance with the requirement of Section 35F of Central Excise Act, 1944, we are of the opinion that the matter should go back to Commissioner (Appeals) for a decision on merits insofar as the appeal is concerned. The appeal is allowed in favour of the appellant by way of remand to the Commissioner (Appeals) for deciding the appeal afresh on the basis of available records and the submissions to be made by the appellant during the course of hearing of the appeal.

Summary

Issues Involved:
Appeal for early hearing, noncompliance with Section 35F of Central Excise Act, remand for decision on merits.

Issue 1: Appeal for Early Hearing
The applicant filed an application seeking early hearing of the appeal, which was allowed after considering the prayer. The Tribunal, with the consent of both sides, decided to take up the appeal for final disposal on the same day due to the issue being in a narrow compass.

Issue 2: Noncompliance with Section 35F of Central Excise Act
The Commissioner (Appeals) had dismissed the appellant's appeal for noncompliance with the requirement of Section 35F of the Central Excise Act, 1944. However, it was noted that the appellant had already deposited 10% of the disputed amount, as required for filing the appeal before the Tribunal. The Tribunal found that the appeal should be entertained for a decision on merits since the Commissioner had not discussed the case's merits and simply dismissed it for noncompliance.

Issue 3: Remand for Decision on Merits
The Tribunal set aside the impugned order and allowed the appeal in favor of the appellant by way of remand to the Commissioner (Appeals) for deciding the appeal afresh on the basis of available records and submissions to be made by the appellant during the hearing. The Tribunal emphasized that the appellant should be given an opportunity for a personal hearing before the case is decided afresh.

In conclusion, the appeal was allowed by way of remand, directing the Commissioner (Appeals) to decide the case on its merits after providing the appellant with an opportunity for a personal hearing.