Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2019 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 507 - AT - Service TaxCondonation of delay in filing of appeal - non-payment of pre deposit - section 35F of the Central Excise Act - Held that:- Date of receipt being admitted by the Commissioner himself to be 15.06.2017 and appeal being filed on 08.09.2017, delay is only about 3 weeks over the normal appeal period and not even a month which was within the condonable period available with the Commissioner - Further having, been acknowledged that possession of appellant office was taken over by the Punjab National Bank authorized officer during the corresponding period, the Commissioner (Appeals) should not have refused to condone the delay on such narrow technical ground that flat number is different since there might be possibility that both the flats were being possessed by the appellant - delay condoned. Non-payment of statutory pre deposit amount for filing of appeal - Held that:- The appellant contention that 80 per cent of duty liability has been discharged by them has not been supported by any documentary evidence. 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. 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 re-adjudication of both the appeals 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 delay of 3 weeks in filing appeal before the Commissioner (Appeals-III) is condoned at this end - Pre-deposit having been made at this end, matter is remanded back to him for re-adjudication - appeal allowed.
|