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2018 (8) TMI 1596 - AT - Service TaxMaintainability of appeal - failure to meet the statutory requirement of pre-deposit payable under Section 35F of the Central Excise Act, 1994 - Held that:- It is apparently clear that there was difference of opinion concerning service tax liability on which pre-deposit was calculated but having regard to the fact that incidence of tax has been met by the appellant by filing of returns for the said period coupled with payment of late fee in such filing of delayed returns, it can very well be said that predeposit of the required amount was no more a requirement for admitting the appeal by this Tribunal and therefore it has been admitted for hearing - 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 was met but might not have been brought to the notice of the Commissioner (Appeals). 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 necessitate re-adjudication 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 - The matter is remanded back to him for readjudication - Appeal allowed by way of remand.
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