2007 (4) TMI 192 - AT - Service Tax

Appeal dismissed by Comm(A) for non-deposit of the service tax amount held that as per section 35F before dismissing the appeal commissioner ought to have passed an interim order directing the appellants to pre-deposit the amount - There is inadvertency on part of appellant in not filing an application seeking for waiver of pre-deposit since no interim order is passed mater is to Comm. (A) for following the Principles of Natural Justice & to hear the appellants with regard to pre-deposit

Summary

Issues:
1. Non-deposit of service tax amount leading to dismissal of appeal under section 35F of the Central Excise Act.
2. Allegation of violation of Principles of Natural Justice by the Commissioner (Appeals).
3. Request for remand to file an application for waiver of pre-deposit and contest the matter on merits.
4. Interpretation of section 83 of the Finance Act in relation to service tax provisions.
5. Procedure to be followed before dismissing an appeal for non-deposit under section 35F of the Central Excise Act.

Analysis:
1. The appellant's appeal was dismissed by the Commissioner (Appeals) under section 35F of the Central Excise Act due to non-deposit of the service tax amount. The appellant contended that the Commissioner did not follow the Principles of Natural Justice by not directing them to pre-deposit the amount before dismissing the appeal. The Tribunal noted that the normal procedure is to issue an interim order for pre-deposit and provide notice before dismissing the appeal. As the appellant did not file an application for waiver of pre-deposit, the Tribunal remanded the matter to the Commissioner (Appeals) to allow the appellant to file such an application and comply with the terms of the Order-in-Original.

2. The appellant sought a remand to have the opportunity to file an application for waiver of pre-deposit and contest the matter on merits. The Tribunal acknowledged the pleas raised by the appellant on merits regarding the non-confirmation of demands. It was emphasized that the appellant's inadvertent mistake in not seeking waiver of pre-deposit could have been rectified by the Commissioner (Appeals) through a defect memo. The Tribunal set aside the impugned order and directed the Commissioner (Appeals) to consider the application for waiver of pre-deposit and grant the appellant an opportunity to pre-deposit the amount as per the interim order.

3. The learned JDR referred to section 83 of the Finance Act, highlighting that the provisions of the Central Excise Act apply to service tax in the absence of specific provisions. Section 35F of the Central Excise Act was specifically mentioned in this context. The JDR conceded that before dismissing the appeal under section 35F, the Commissioner should have issued an interim order directing compliance with the Order-in-Original terms. The Tribunal, while considering the submissions, emphasized the need for following the Principles of Natural Justice and providing the appellant with an opportunity to be heard regarding the pre-deposit of the amount.

4. The Tribunal noted that the Finance Act specifies the application of Central Excise Act provisions to service tax matters in the absence of specific provisions. It was highlighted that section 35F of the Central Excise Act should be invoked for dismissal of the appeal only after giving the appellant an opportunity to file an application for waiver of pre-deposit and comply with the interim order. The Tribunal emphasized the importance of procedural fairness and remanded the matter to the Commissioner (Appeals) for proper consideration of the appellant's application and compliance with the Principles of Natural Justice.

5. In conclusion, the Tribunal set aside the decision of the Commissioner (Appeals) and remanded the matter to allow the appellant to file an application for waiver of pre-deposit. The Tribunal directed the Commissioner (Appeals) to follow the correct procedure by issuing an interim order for pre-deposit and granting the appellant an opportunity to comply before invoking section 35F of the Central Excise Act for the dismissal of the appeal. The focus was on ensuring procedural fairness and adherence to the Principles of Natural Justice throughout the process.