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2016 (1) TMI 1007 - HC - Central ExciseApplication for waiver of the predeposit under Section 35F dismissed - Held that - In the absence of any counter affidavit by the Respondent, the Court considers it appropriate to make absolute the order passed by this Court 2015 (10) TMI 788 - DELHI HIGH COURT . The impugned order passed by the CESTAT is, accordingly, modified by directing that the appeal of the Petitioner would be heard without requiring pre-deposit of 7.5% in the category of Supply of Tangible Goods for use . The Petitioner s appeal now be heard on merits in accordance with law.
Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dismissing application for waiver of predeposit under Section 35F of Central Excise Act, 1944. Analysis: The High Court dealt with a writ petition challenging the CESTAT's order of 30th June, 2015, which dismissed the petitioner's application for waiver of predeposit under Section 35F of the Central Excise Act, 1944. The core issue revolved around the classification of services provided by the petitioner as either "Transportation of Passengers by Air Services" or "Supply of Tangible Goods for use." The petitioner had paid a substantial amount as service tax under the former category, but the department disputed this classification. The Court, in its previous order dated 17th July, 2015, acknowledged the need to determine the correct category and directed that the petitioner should not be required to deposit 7.5% under the "Supply of Tangible Goods for use" category pending adjudication. The Court found merit in the petitioner's case due to the conflicting categorization and issued a notice to this effect. The Respondent sought additional time to file a reply, but the Court noted that sufficient time had already passed since the notice was issued in July 2015. As the Respondent failed to file a counter affidavit, the Court decided to uphold its previous order dated 17th July, 2015, and modified the CESTAT's order. Consequently, the Court directed that the petitioner's appeal would proceed without the requirement of pre-deposit in the disputed category. The judgment emphasized that the appeal should be heard on its merits in accordance with the law. Ultimately, the petition and the pending application were disposed of based on the above terms, providing relief to the petitioner by allowing the appeal to be heard without the pre-deposit requirement, thus ensuring a fair adjudication of the matter.
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