2018 (5) TMI 489 - AT - Service Tax

Pre-deposit - non-compliance with time limit - Section 35F of the CEA - Section 35 (1) of CEA - Held that - Section 35 (1) is in respect of type of appeal which can be filed before the Commissioner (Appeals) and it does not deal with entertaining appeal by Commissioner (Appeals). Section 35F in turns deals only with the entertaining the appeal subject to condition of pre-deposit of seven and half percent - both Sections are Independent and have got no overriding effect on the other - It nowhere prescribes the time limit for making predeposit and the provisions of Section 35 F cannot be read in context of Section 35 (1) as it has got no application. Once the appeal has been filed within the time limit the same cannot be dismissed on the ground of late payment of pre deposit amount. Matter remanded to Commissioner (Appeals) to hear the case on merits - appeal allowed by way of remand.

Summary

Issues:
Appeal against Order-in-appeal based on pre-deposit under Section 35F of the CEA.

Analysis:
The Appellant filed an appeal against the Order-in-appeal passed by the Commissioner (Appeals), who dismissed the appeal due to a late mandatory pre-deposit under Section 35F. The Appellate Commissioner held that the time limit under Section 35(1) for filing an appeal also applies to the requirement of making a pre-deposit of duty under Section 35F. The Appellant contended that the reference to Section 35(1) in Section 35F is only for specifying the applicable appeals, not for setting a time limit for making a pre-deposit. They argued that the appeal was correctly filed within 60 days, meeting the requirement of Section 35(1) of the CEA.

The Tribunal analyzed Sections 35 and 35F of the CEA. They found that both sections are independent, with no overriding effect on each other. Section 35(1) pertains to the type of appeal before the Commissioner (Appeals), while Section 35F deals with entertaining appeals subject to the condition of a pre-deposit. The Tribunal noted that Section 35F does not specify a time limit for making a pre-deposit, and the provisions of Section 35F cannot be interpreted in the context of Section 35(1). They emphasized that the non-payment of a pre-deposit is a curable defect, and an appeal can only be entertained when filed within the stipulated period. In this case, the Appellant made the pre-deposit required under Section 35F, albeit after filing the appeal, which should not be a ground for dismissal. The Tribunal held that the reasoning of the Commissioner (Appeals) was incorrect, set aside the impugned order, and remanded the case for a merit-based decision.

The Tribunal disposed of the appeal by remanding it to the Commissioner (Appeals) for further proceedings. The judgment was pronounced in court on 13/04/2018.