2021 (1) TMI 629 - HC - Service Tax

Maintainability of appeal - non-submission of pre-deposit - Section 35 F of the Finance Act, 1994 - HELD THAT - Considering the fact that the appeal is a statutory appeal and the same is only rejected because of non-deposit of the amount required for entertaining the appeal per provisions of Section 35 F of the Finance Act, 1994, it is considered appropriate that one more opportunity needs to be granted to the petitioner for depositing the amount as required by Section 35 F of the Finance Act for entertaining the statutory appeal on merits. The petitioner is permitted to deposit the amount as envisaged by Section 35 F of the Finance Act, 1994 towards pre-deposit for entertaining his statutory appeal. Said amount be deposited within a period of one month from today - petition disposed off.

Summary

Issues:
1. Petition for revival of appeal with pre-deposit
2. Validity of Ext.P2 order
3. Validity of Ext.P4 order
4. Stay on recovery of disputed tax

Analysis:
1. The petitioner sought a writ to revive Ext.P3 appeal by making a 7.5% pre-deposit and requested a disposal within a specified time. The counsel argued that the service provided was deemed taxable, leading to a challenge through a statutory appeal. Initially, the petitioner believed pre-deposit was not mandatory under Section 35 F of the Central Finance Act, 1994, but now agrees to comply. Citing a previous judgment, the counsel urged for a review due to non-deposit being the reason for appeal rejection.

2. The respondents' counsel defended the impugned order rejecting the appeal for lack of pre-deposit. The Court acknowledged the statutory nature of the appeal and the rejection solely based on non-compliance with Section 35 F of the Finance Act, 1994. Consequently, the Court decided to grant the petitioner another opportunity to make the required deposit for the statutory appeal to be entertained on its merits.

3. In the final judgment, the Court quashed the rejection order of the appeal and allowed the petitioner to deposit the specified amount within one month as per Section 35 F of the Finance Act, 1994. Upon deposit, the appellate authority was directed to reconsider and decide the appeal in accordance with the law. The petition was disposed of accordingly, providing relief to the petitioner for compliance with the pre-deposit requirement.