2019 (4) TMI 23 - AT - Service Tax

Maintainability of appeal - non-compliance with the pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that - Since the CENVAT Credit has been held to be inadmissible as such, it is not available to the appellants for any purpose, even for the payment of the amounts required to be deposited under Section 35F. If any reversal from the inadmissible credit is considered a sufficient compliance to the provisions of Section 35F, then it is like, banker allowing encashment of fraudulent financial instrument like cheque or draft to that extent. The appellants are directed to comply with the requirements of Section of 35F read with Section 83 Finance Act, 1994 within a period of thirty days from the date of receipt of this order - application allowed.

Summary

Issues:
Challenge to maintainability of appeal due to non-compliance with Section 35F of the Central Excise Act, 1944 for service tax matters.

Analysis:
The Revenue filed miscellaneous applications contesting the maintainability of an appeal by M/s. IDBI Bank Ltd. against an order passed by the Commissioner of Central Excise & Service Tax, LTU, Mumbai. The Revenue argued that the appellant failed to pre-deposit 7.5% of the disputed adjudged demand, a requirement under Section 35F of the Central Excise Act, 1944, applicable to service tax matters under Section 83 of the Finance Act, 1994. The impugned order confirmed a service tax demand of &8377;61,49,57,000, with an amount of &8377;30,74,78,500 already paid during adjudication. The appellant claimed that the reversed cenvat credit should satisfy the pre-deposit requirement. However, the Commissioner held that since the CENVAT Credit was deemed inadmissible, it could not be utilized for the pre-deposit amount under Section 35F.

The main issue in dispute was the admissibility of CENVAT Credit for certain input services. The Commissioner ruled that the credit was not admissible, leading to its removal from the appellant's accounts. The appellants argued that they had debited 50% of the disallowed credit as per Rule 6(3B) of the CENVAT Credit Rules, 2004. They contended that this reversal should be considered for meeting the pre-deposit requirement under Section 35F. However, the Tribunal held that since the credit was deemed inadmissible, it could not be utilized for any purpose, including meeting the deposit requirements. Allowing the Revenue's application, the Tribunal directed the appellants to comply with the pre-deposit requirements within thirty days from the date of the order.

In conclusion, the Tribunal upheld the requirement of pre-deposit under Section 35F of the Central Excise Act, 1944 for filing appeals in service tax matters. The decision emphasized that inadmissible credits cannot be used to fulfill the deposit obligations, ensuring compliance with the statutory provisions.