2017 (2) TMI 969 - HC - Service Tax

Court sets aside order, directs authority to consider submissions before issuing fresh order

The court set aside the order returning the appeal, directing the authority to consider the petitioner's submissions and hear their authorized ... Pre-deposit - Section 35F of the CEA - section 83 of the FA, 1994 - natural justice - Held that: - Unfortunately, the concerned authority while passing the impugned order has not adverted to any of the assertions made by the petitioner. The order returning the appeal is silent on the aspects adverted to in the representation dated 16.12.2016 - The concerned authority will advert to the assertions made in the representation dated 16.12.2016 - petition allowed by way of remand. Issues involved:Challenge to order returning appeal due to failure to comply with pre-deposit requirements under Central Excise Act and Finance Act, 1994.Analysis:1. The writ petition challenged the order returning the appeal against an original order due to purported failure to comply with pre-deposit requirements. The impugned order referred to Section 35F of the Central Excise Act and Section 83 of the Finance Act, 1994.2. The petitioner argued that a previous show cause notice was issued before the one in question, and a demand was raised against which a sum was paid. The current show cause notice covered a different period, and a demand for service tax and penalties was confirmed in the order dated 14.10.2016.3. The petitioner presented a detailed month-wise income and short payments for 2008-09, highlighting differences in income for specific periods. The counsel contended that the payment made pursuant to the previous show cause notice should cover the demand raised in the subsequent notice as well, fulfilling the pre-deposit requirement.4. The respondents insisted on the need for the petitioner to deposit 7.5% of the service tax/penalty as per the impugned order, without acknowledging the petitioner's submissions in their representation dated 16.12.2016.5. The court found merit in the petitioner's contentions, noting that the impugned order did not address the assertions made in the representation. Consequently, the order returning the appeal was set aside, directing the concerned authority to consider the petitioner's submissions and hear their authorized representative before passing a fresh order within two weeks.6. The writ petition was disposed of accordingly, with the connected pending application closed, and no costs were awarded.