2013 (9) TMI 432 - AT - Service Tax

Tribunal restores Appeal, waives pre-deposit, emphasizes evidence submission, ensures fair hearing

The Tribunal allowed the Miscellaneous Application, restoring the Appeal and waiving the pre-deposit requirement. The matter was remanded to the ... Restoration of Appeal – appeal was dismissed for non-compliance with directions of pre-deposit of dues - Held that:- there is considerable force in the argument of the Ld. Chartered Accountant that prima facie they are not required to pay any duty as major portion of the duty relates to payment of DOT which has now been accepted by other Commissionerates as proper discharge of Service Tax. - appeal restored and requirement of predeposit waived. Issue of payment to DOT by the applicant had been raised at various levels and before the Commissioners time and again. Initially the payment of DOT has not been accepted by the department as discharge of their Service Tax liability since the amount has not been paid to the Ministry of Finance, Deptt. of Revenue, after the Appellant separated from DOT. However, from the orders submitted by the Ld. Chartered Accountant, we find that the Commissionerates at Jamshedpur and Ranchi have accepted the payment made to DOT as discharge of their Service Tax liability. Also, we find in similar circumstances this Tribunal has remanded the matter to the adjudicating authority for re-consideration of the payment made to DOT as discharge of liability towards Service Tax - matter remanded back. Issues:1. Restoration of Appeal dismissed for non-compliance with pre-deposit of dues.2. Non-representation and non-compliance with directions of pre-deposit.3. Challenge against recovery proceedings initiated by the department.4. Dispute over the computation of demand.5. High Court's direction to dispose of the Miscellaneous Application.6. Consideration of payment to DOT as discharge of Service Tax liability.7. Remand of the matter to the adjudicating authority for re-consideration.Analysis:1. The Miscellaneous Application sought restoration of the Appeal dismissed for non-compliance with pre-deposit of dues ordered on 14.11.2011.2. The Appeal was dismissed due to non-representation and non-compliance with pre-deposit directions. The applicant claimed they did not receive the hearing notice, leading to their absence on the hearing date.3. The applicant challenged the recovery proceedings initiated by the department, filing a Writ Petition before the High Court at Ranchi, which directed the Tribunal to dispose of the Miscellaneous Application.4. The Ld. Chartered Accountant argued that a significant portion of the demand had been paid, with a part accepted by the Commissioners towards Service Tax liability. He also highlighted errors in the computation of the demand.5. The High Court directed the Tribunal to decide on the restoration application within a specified period, emphasizing the consideration of the applicant's appeals and stay petition.6. The Tribunal found merit in the argument that no duty was required to be paid as a major portion related to payment to DOT, accepted by other Commissionerates. An error in the demand computation was also noted.7. The Tribunal, in line with the High Court's direction and for the interest of justice, allowed the Miscellaneous Application, restored the Appeal, and decided to waive the pre-deposit requirement for further disposal of the appeal itself.8. The Tribunal remanded the matter to the adjudicating authority for re-consideration, instructing the appellant to provide evidence regarding payment to DOT and other relevant aspects, ensuring a fair hearing and keeping all issues open for review. The impugned order was set aside, and the Appeal allowed by way of remand.