2024 (12) TMI 157 - AT - Service Tax

Condonation of delay of 28 days on the ground that the Order in Original was received by the appellant only on 16/11/2022 - whether the mandatory pre-deposit has been paid by the appellant? - time limitation - HELD THAT - The appellant claims to have paid Rs.9,82,313/- during the period April 2015 to August 2016, towards Video Tape Prod Ser-Tax Collection at Corporation Bank through internet banking. As per the OIO dated 12/08/2022, the appellant has not filed ST 3 returns for the half yearly periods April 2015 to September 2015 and October 2015 to March 2016 for the financial years 2015 16. Whereby they have not paid the Service Tax of Rs.12,68,750/- on the taxable value of services. The OIO has not accepted the payments made and shown in the challans towards duty as no documentary proof was shown that the amounts were paid as duty. The same was hence not adjusted towards the duty demanded. This being so the amounts paid are treated as pre-deposit and satisfy Section 83 of FA read with section 35F of the CEA. Time Limitation - HELD THAT - There is a lack of clarity on the dates involved with proof of the same. When an issue is being determined on the basis of limitation it is necessary for the concerned Authority to set out the dates along with the basis for adopting the same and the specific provision of law involved, clearly. A similar clarity with proof was required to be submitted by the appellant in the Appeal Memorandum so that the matter could have been decided. The same is lacking by both the parties. The matter hence needs to be remanded for a decision afresh. In case the time limit is within the condonable period the Ld. Commissioner Appeal is required to take a judicious decision on the same. The issue relating to pre-deposit is found in favour of the appellant and the appeal to that extent is allowed. The issue of time bar needs to be re-determined by the Commissioner Appeals. If the facts are found in favour of the appellant the appeal may then be decided on merits. The appeal is hence partly allowed on the issue of pre-deposit and the matter is remanded for a decision on the question of time bar - The appeal is disposed of accordingly.

Summary

Issues:
1. Delay in filing appeal before Commissioner of GST and Central Excise (Appeals)
2. Non-payment of mandatory pre-deposit under Section 35F of the Central Excise Act 1944 (CEA) read with Section 83 of the Finance Act 1994 (FA)

Analysis:

Issue 1: Delay in filing appeal before Commissioner of GST and Central Excise (Appeals)

The appellant filed an appeal against the Order in Original dated 12/8/2022 with a delay of 28 days, claiming that they received the order only on 16/11/2022. The Commissioner (Appeals) rejected the appeal due to the delay being beyond the condonable period and the appellant's failure to pre-deposit the statutory amount for filing the appeal. The appellant contended that they complied with the timeline stipulated in Section 86(1A) of the Finance Act, allowing two months for appeals and condonation of one month, starting from 28/05/2012. The appellant argued that technical difficulties hindered timely tax discharge and that rejecting their documentary evidence without justification is not valid. The Tribunal found a lack of clarity on the dates involved and remanded the matter for a fresh decision, emphasizing the need for clear proof and basis for determining the time limit.

Issue 2: Non-payment of mandatory pre-deposit under Section 35F of the Central Excise Act 1944 (CEA) read with Section 83 of the Finance Act 1994 (FA)

The appellant claimed to have paid Rs.9,82,313/- towards 'Video Tape Prod Ser-Tax Collection' during April 2015 to August 2016 through internet banking. The Order in Original stated that the appellant had not filed ST 3 returns for certain periods, leading to a service tax demand of Rs.12,68,750/-. The OIO did not accept the payments made as duty, as no documentary proof was provided. However, the Tribunal held that the amounts paid constituted pre-deposit and satisfied the relevant sections of the FA and CEA. The Tribunal found in favor of the appellant on the issue of pre-deposit, allowing the appeal to that extent and remanding the matter for a decision on the time bar issue.

In conclusion, the Tribunal partly allowed the appeal on the issue of pre-deposit and remanded the matter for a decision on the time bar issue, emphasizing the need for clarity and proof in determining the time limit.