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2023 (5) TMI 301 - AT - Service TaxMaintainability of appeal - non-payment of required pre-deposit amount in cash - imposition of Service tax on the basis of turnover shown in the Income tax returns of 2013-14 - rejection of Appellant’s appeal filed before the Commissioner (Appeals) challenging such order - HELD THAT:- The appeal should not be admitted for hearing by the Commissioner (Appeals) in the event of non-compliance of the provisions mentioned above but ones appeal is admitted for hearing Commissioner (Appeals) has to follow the dictates of law provided under Section 35A(iv) and dispose of the appeal stating the points for determination and the decision thereon with reasons for such decision and he should not have disposed of the appeal after hearing the appeal only for non-compliance of pre-deposit provisions in view of the wordings available in the text underlined above, namely “shall not entertain any appeal” and “appeal filed by the Appellant is liable for rejection”. To put it otherwise, there is a difference between dismissal of appeal and rejection of the same. Having regard to the fact that Appellant had removed the defects and paid the entire pre-deposit amount of 10% in cash through Challan for filing appeal before the CESTAT, as has been noted in order dated 28.02.2023 for admitting the appeal, it is considered proper to remind the appeal back to the Commissioner (Appeals) for determination of issues and his finding on the same as contemplated in Section 35A(iv). Appeal allowed by way of remand.
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