2010 (7) TMI 120 - AT - Service Tax

Tribunal remands case, sets aside Commissioner's order for non-compliance, grants appellant fair hearing

The Tribunal allowed the appeal by remanding the case, setting aside the Commissioner (Appeals)'s order for non-compliance with the stay order terms. The ... Non compliance of stay order - Commissioner (Appeals) dismissed the appeal for non-compliance of the provision of Section 35F of the Central Excise Act, 1944 as on 2.4.2009 – Held that: - appellant submits that the appellant has paid a sum of Rs.89,000/- on 25.1.2010 - The appellant has since deposited 50% of the amount of service tax demanded which is more than the amount of Rs.75,000/- ordered to be pre-deposited. – appeal before commissioner (appeals) restored. Issues:1. Compliance with Section 35F of the Central Excise Act, 1944 regarding pre-deposit.2. Appeal dismissal for non-compliance with stay order terms.3. Request for remand of the matter to Commissioner (Appeals).Analysis:1. The Appellate Tribunal considered the case where the original authority confirmed a demand of Rs.1,78,645/- with interest and imposed a penalty of the same amount. The Commissioner (Appeals) directed the appellant to deposit Rs.75,000/- to stay the order, but later dismissed the appeal for not complying with Section 35F of the Central Excise Act, 1944.2. The appellant, through their Consultant, informed the Tribunal that they paid Rs.89,000/- towards service tax as per the original authority's order. The appellant requested a remand of the matter to the Commissioner (Appeals) for reconsideration.3. The Tribunal noted that the appellant had deposited 50% of the demanded service tax, exceeding the Rs.75,000/- pre-deposit requirement. As the Commissioner (Appeals) did not assess the appeal on its merits due to non-compliance with the stay order, the Tribunal set aside the Commissioner's order and remanded the matter for a fresh consideration. The Commissioner (Appeals) was instructed to hear the appeal without insisting on further pre-deposit, granting a reasonable opportunity of hearing to the appellant.4. Consequently, the Tribunal allowed the appeal by remanding the case and disposed of the stay petition. The decision was made by the Technical Member, Hon'ble Shri M. Veeraiyan, who granted the remand and provided detailed reasoning for the same.