9911796707
TMI Blog2011 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. P.G. Chacko, Mr. Sahab Singh, JJ. Shri R. Ravindran, Advocate, for appellant Shri W.L. Hangshing, Authorised Representative (JCDR), for respondent Per: P.G. Chacko In this application, the appellant prays for waiver of pre-deposit and stay of recovery in respect of service tax of Rs.43,75,236/- demanded under the proviso to Section 73(1) of the Finance Act, 1994 and also in respect of penalties imposed under Sections 75A, 76 and 78 of the Act. After examining the records and hearing both sides, we have found this case to be fit for remand. Accordingly, after dispensing with pre-deposit, we proceed to deal with the appeal. 2. This appeal is directed against an order of the Commissioner (Appeals) rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute, was appropriately classifiable as management consultancy service as defined under Section 65(105)(r) of the Finance Act, 1994. In this connection, the learned Commissioner (Appeals) noted the plea of the assessee that the service provided by them to the owner of the vessel was covered by ship management service defined under Section 65(105)(zzzt) read with Section 65(96a) of the Finance Act, 1994, but did not consider this plea on merits. Where there was no pre-deposit of the amount determined by the Commissioner (Appeals), he ought to have rejected the appeal on that ground without entering into any discussion on merits. If the learned Commissioner (Appeals) chooses to render a decision on merits on the classification of the service, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to take up the appeal for disposal on merits in accordance with law and principles of natural justice. It is also made clear that, in case any pre-deposit is ordered, the amount shall not exceed the one fixed in the earlier interim order for pre-deposit. 5. We have not made any observation herein on the question whether the service rendered by the appellant to the owner of the vessel could be appropriately classified in one way or the other. It is open to the lower appellate authority to address this issue in the context of considering the assessee s modification application as also in the context of considering their appeal. 6. The appeal stands allowed by way of remand for the aforesaid purpose. The stay application stan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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