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2018 (10) TMI 97 - AT - Service TaxBelated filing of appeal - non-payment of pre deposit - case of appellant is that they could not file the said appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer for condonation of delay explaining sufficient grounds for such delay but that was not accepted by the Commissioner (appeals). Held that:- Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions - Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it is a fit case which necessitates readjudication by the Commissioner (Appeals) as under Section 35A (3). He is also empowered to make such further enquiry as may be necessary in order to pass such order as he may think proper and not to confine his views on the merits of the order of the adjudicating authority. Nonpayment of statutory pre deposit amount for filing of appeal - appellant contention that 80 per cent of duty liability has been discharged by them has not been supported by any documentary evidence - Held that:- Going by the statutory provision appeal should not have been entertained or admitted for hearing bereft of statutory pre deposit but the moment it is admitted for hearing, such failure on the part of appellant would have been pointed out to it enabling it to make pre deposit so as to ensure natural justice and not to dismiss the appeal at the end of hearing, after completing the entire exercise of appeal proceedings - Further having regard to the fact that 10 per cent pre deposit vide challan as exhibit A is filed at this end, no further discussion is required to be done on pre deposit. The appeal is allowed and the delay of 3 weeks in filing appeal before the Commissioner (Appeals-III) is condoned at this end - Predeposit having been made at this end, matter is remanded back to him for re-adjudication - application allowed.
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