2024 (2) TMI 728 - AT - Service Tax

Dismissal of appeal - appeal was rejected on the ground that the same is not accompanied by a proof evidencing that the appellant had deposited 7.5% of duty demanded or penalty imposed through the new revised procedure - HELD THAT - During the course of hearing, the learned counsel for the appellant has pointed out to the challan dated 13 May 2023 whereby he has made the pre-deposit of the complete 10% in order to avail the appeal to be filed before this Tribunal and the appeal has been filed before the Tribunal on 29.05.2023. Since the needful for payment of the pre-deposit stands complied with, there are no hesitation in remanding the matter back for proper adjudication on merits. Since neither the adjudicating authority in the absence of the documents to be placed by the appellant nor the appellate authority has considered the issue on merits, it would be just and appropriate that the matter is remanded to the adjudicating authority to consider the same on merits and decide the issue in the light of the decisions referred by the superior forums. The matter is remanded back to the adjudicating authority, to be considered de novo - Appeal allowed by way of remand.

Summary

Issues Involved: Challenge to dismissal of appeal for failure to make pre-deposit under Section 35F of the Central Excise Act, 1944.

Summary:

Issue 1: Failure to Make Pre-Deposit Under Section 35F:
The appellant, a civil contractor providing work contract services to the Government agency, received a show cause notice for recovery of service tax amounting to Rs. 31,00,432/- for the period April 2016 to March 2017. Despite notices and opportunities for hearing, the appellant did not appear, leading to an ex-parte decision confirming the tax liability based on data from the Income Tax department. The appeal was dismissed by the Commissioner due to failure to make the pre-deposit in accordance with Circular No. 1070/3/2019-CX and instructions from the CBIC. The appellant argued that the services rendered were exempt from service tax and challenged the basis of the tax demand, citing relevant legal provisions and precedents.

Issue 2: Compliance with Pre-Deposit Requirement:
The appellant initially made a partial pre-deposit not in line with the prescribed procedure, leading to the dismissal of the appeal. However, during the appeal process, the appellant made a complete pre-deposit of 10% and filed the appeal before the Tribunal. The Tribunal, upon noting the full pre-deposit, remanded the matter back to the adjudicating authority for proper consideration on merits. The Tribunal emphasized the need for a thorough review of the case based on the submissions and documents provided by the appellant.

Conclusion:
The impugned order dismissing the appeal was set aside, and the matter was remanded for fresh adjudication by the adjudicating authority. The appellant was granted the opportunity to present all relevant points and supporting documents for a comprehensive review. The appeal was allowed by way of remand, ensuring a fair consideration of the case on its merits.