2023 (9) TMI 1067 - AT - Service Tax

Maintainability of appeal - appeal rejected on the grounds that the appellant had not made the pre-deposit as required under section 35F of the Central Excise Act, 1944 as made applicable to Service Tax - HELD THAT - The appellant had filed an application for waiver of pre-deposit ordered by the Commissioner (Appeals). This Tribunal vide Miscellaneous Order No. 42008/2014 dated 24.11.2014 directed the appellant to make a pre-deposit of Rs.1,30,000/- only. Upon deposit of the said amount, predeposit of the balance amount of tax along with interest and penalty was to be waived and stay of recovery thereof to be operative till the disposal of the appeal. The appeal has not been disposed of on merits by the lower appellate authority since the predeposit had not been made by the appellant. Now that the defect has been cured, the matter remanded back to the lower appellate authority to decide the issue on merits. The Commissioner (Appeals) shall follow the principles of natural justice and afford a reasonable and time bound opportunity to the appellant to state their case both orally and in writing if they so wish, before issuing a speaking order in the matter. The appellant should also co-operate with the appellate authority in completing the process expeditiously and in any case within ninety days of receipt of this order. The impugned order is set aside and the appeal is restored before the Commissioner (Appeals) for a decision on merits - appeal disposed off.

Summary

Issues involved:
The issues involved in the judgment are the liability of service tax on the appellant for providing storage tanks to customers and the non-compliance of pre-deposit leading to the dismissal of the appeal by the Commissioner (Appeals).

Issue 1: Liability of service tax on the appellant for providing storage tanks to customers:
The appellant was providing fixed storage tanks and vacuum insulated storage tanks to customers for regular supply of liquid gases without any interruption. The appellant charged Fixed Facility Charges (FFC) from customers for providing these storage tanks, with ownership, control, maintenance, and insurance undertaken by the appellant. The department viewed this as the appellant providing services in the nature of 'supply of tangible goods', leading to a demand for service tax of Rs 13,43,628/- for a specific period. The original authority confirmed the demand, interest, and imposed penalties. The Commissioner (Appeals) dismissed the appeal due to non-compliance of pre-deposit under Section 35F of the Central Excise Act, 1944. The appellant argued that they were merely renting the tanks to customers and not providing any service of 'supply of tangible goods', citing previous tribunal decisions and a judgment of the High Court of Madras in their favor.

Issue 2: Non-compliance of pre-deposit leading to dismissal of the appeal:
The appellant failed to make the pre-deposit as directed by the Commissioner, resulting in the dismissal of the appeal by the Commissioner (Appeals). The appellant later filed applications for waiver of pre-deposit, which were partially granted by the Tribunal. The Tribunal directed the appellant to make a pre-deposit of a specified amount, which was complied with by the appellant. However, the appeal had not been disposed of on merits by the lower appellate authority due to the non-compliance with the pre-deposit requirement. The Tribunal set aside the impugned order and remanded the matter back to the lower appellate authority to decide the issue on merits, emphasizing the importance of following principles of natural justice and providing a time-bound opportunity for the appellant to present their case.

In conclusion, the judgment addressed the liability of service tax on the appellant for providing storage tanks to customers and the consequences of non-compliance with pre-deposit requirements in the appeal process. The Tribunal set aside the impugned order and restored the appeal before the Commissioner (Appeals) for a decision on merits, emphasizing the need for a fair and time-bound process in reaching a final decision.