2018 (8) TMI 1596

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....since appellant failed to meet the statutory requirement of pre-deposit payable under Section 35F of the Central Excise Act, 1994. 2. Bereft of unnecessary detail, the factual backdrop of the case is that the adjudicating authority i.e. Additional Commissioner, Service Tax Audit III, Mumbai confirmed service tax liability of Rs. 10,33,005 along with interest and penalty imposed the appellant for not meeting tax liability under "business auxiliary service" enumerated under 65 (105) (zzb) of the Finance Act 1994. The same is challenged before the Commissioner (Appeals) by the appellant that resulted in its rejection for want of adequate pre-deposit. 3. In his order-in-appeal, the Commissioner (Appeals) made the following observations in....

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.... the appeal filed by the appellant is liable for rejection." 7. Thus, payment of pre-deposit made by appellant is short of the amount stipulated under Section 35F of the Central Excise Act, 1944. Therefore, the appeal filed by the appellant is liable for rejection." and accordingly he rejected the appeal as not maintainable for not meeting statutory requirement of pre-deposit. 4. During the course of hearing of this appeal the learned Counsel for the appellant, in filing challan copies of ereceipt of tax liability submitted that major part of the duty demand to the tune of Rs. 10,33,005/- plus interest and late fee had been paid by the time appeal was filed before the Commissioner (Appeals) and the last component of the duty ....

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....as been admitted for hearing. However, Section 86 (7) dictates the Tribunal to follow the same procedure as it exercises and follows in hearing the appeals and making orders under Central Excise Act 1994 and the Central Excise Act vide Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable on ground of short-payment of pre-deposit which, in reality was not existing since the entire tax liability wa....