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2015 (9) TMI 1096 - CESTAT CHENNAI

2015 (9) TMI 1096 - CESTAT CHENNAI - TMI - Waiver of pre deposit - Section 35F - Penalty u/s 77 - Held that:- In this appeal the LAA has dismissed the appeal for non-compliance of predeposit, even though appellate authority mentioned that appeal is decided on merit. The appellate authority has not discussed the issue on merits and dismissed the appeal for non-compliance. Therefore the case to be remitted to L.A.A. We also find that appellant made a submissions before the lower authorities on lim .....

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Judicial Member, JJ. For the Petitioner : Shri S. Muthuvenkatraman, Advocate For the Respondent : Shri L. Paneer Selvam, AC (AR) ORDER Per R. Periasami The present appeal is filed by appellant against Commissioner (Appeals) order who dismissed the appeal for non-compliance of predeposit under Section 35F read with Section 83 of the Finance Act. The adjudicating authority in his order dt.26.8.2011 confirmed the demand of service tax of ₹ 32,09,148/- under maintenance or repair service along .....

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to that extent of dismissing the appeal on merits but sustained the order to the extent of ordering for predeposit. Aggrieved by the order, appellant preferred C.M.A before the Hon'ble High Court, Madras. The Hon'ble High Court vide its order dt.25.7.2014 in C.M.A.No.703/2014 and MP No.1/2014 set aside the Tribunal's order and remanded the case to Tribunal to consider the issue of predeposit. The relevant para of the High Court's order dt.25.7.2014 is reproduced below :- (g) Whi .....

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s to pre-deposit. 12. We find that in pars-30 (g) of the abovesaid decision, the Tribunal has clearly held that in an appeal against the final order of the Appellate Commissioner (dismissing the appeal for failure to pre-deposit), the Tribunal will not adjudicate upon the merits of the appeal, but if the order of pre-deposit passed by the Commissioner (Appeals) in the given facts and circumstances of the case is erroneous, the Tribunal is required to set aside the order of the Appellate Authorit .....

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appellant before this Court. Learned standing counsel for the Department, when pointed out about the error in the order, also fairly submits that the Tribunal should have considered the issue of pre-deposit on merits instead of confirming the order of the Commissioner (Appeals) as impeccable without setting out how it is above standards. In the light of the discussion as made above, the 2nd substantial question of law is answered in favour of the assessee. 13. In the result , the appeal is allow .....

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