2019 (7) TMI 334

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..... for the Respondent ORDER Present is an Appeal preferred against the Order of Commissioner(Appeals) bearing No. 228/18-19 dated 17.07.2018 whereby the Appeal is held to be hit by bar of non-payment of mandatory pre-deposit of 7.5% of the service tax involved in this case. The appellant herein was served with a show cause notice No. 2982 dated 13.09.2017 proposing the recovery of service tax amo .....

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..... demand after the Order under challenge vide Challan dated 28.08.2018. The total amount deposited has to be adjusted with respect to the pre-deposit as is to be mandatorily made by the appellant at the time of filing Appeal (7.5% of demand confirmed at the time of Appeal before Commissioner (Appeals) and 10% of the demand confirmed at the time of filing Appeal before this Tribunal). The learned Cou .....

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..... espect to the impugned demand as is apparent from the copies of Challans annexed on record dated 22.08.2017 and 28.08.2018 vide which Rs. 18,930/- each has been deposited by the appellant. There is no denial to these nor even to the fact that both these payments are in lieu of the demand in question. 5.2 Circular as relied upon by the appellant is perused. It reads as follows: "3. Payment mad .....

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..... d confirmed as is mandatorily to be deposited by the appellant at the time of filing the Appeal before this Tribunal is a mandatory deposit in terms of Section 35F of the Central Excise Act. However, any payment made by the appellant during the course of the investigation has to be adjusted against the said percentage of mandatory deposit. In view of the above admissions, the amount which stands d .....

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..... is Rs. 37,860/-. Hence, we are of the opinion that the Commissioner (Appeals) has committed an error while dismissing the Appeal in limini to be barred by Section 35F. Order accordingly is set aside. Appeal stands allowed by way of remand requiring the Commissioner(Appeals) to adjudicate the Order-in-Original on merits thereof. [Order pronounced in the open Court on 04.07.2019]
Case laws, D .....

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