2008 (2) TMI 851

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....e Commissioner confirmed a demand of duty of Rs. 84,74,048 along with interest within the normal period of limitation. The learned advocate raises a preliminary objection that the pre-deposit of service tax is not mandatory before hearing of appeals as section 35F of the Central Excise Act, 1944, which is sought to be relied on seeking predeposit of amount demanded, applies only to cases where "the decision or order appealed against relates to any duty demanded in respect of goods which are not under the Central excise authorities or any penalty under the Act". As this case involves services rendered and since no goods are involved, the provisions of section 35F, which relates to excisable goods, cannot be applied. The learned advocate al....

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.... service tax as they apply in relation to a duty of excise: 9C, 9D, 11B, 11BB, 11C, 12A, 12B, 12C, 12D, 12E, 14, 15, 33A, 35F to 35O (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40." Section 35F of the Central Excise Act also is reproduced below: "Section 35F. Deposit, pending appeal, of duty demanded or penalty levied.-Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided ....

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....or the same is obvious. The duty is on the goods. If the goods have been seized and confiscated and they are lying in the custody of the Department without being released or without release being taken, the question of pre-deposit of duty confirmed will be doubly harsh and therefore, the exception is made. While applying such a provision to service tax matters, in a case like this where the service already has been rendered and service charges have already been realized by the service provider (service tax payable only at the time of realization), it is akin to a situation where the Central excise assessee clears the goods and duty is demanded on such clearances. Therefore, we hold that pre-deposit of service tax is mandatory in terms of se....