Custom, Excise & Service Tax TribunalRockwell V V Developers vs Commissioner Central Goods And Service ... on 31 March, 2023CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL\n                     MUMBAI\n                             REGIONAL BENCH\n\n               Service Tax Appeal No. 85318 of 2023\n\n(Arising out of Order-in-Appeal No. DL/245/Appeals Thane/TH/2021-22 dated\n15.02.2022 passed by the Commissioner of GST & Central Excise (Appeals), Thane)\n.M/s. Rockwell V. V. Developers                             ........Appellant\nA2-3B, Avani Appartments,\nWEH, Dahisar West,\nMumbai - 400 068.VERSUS\n\n Commissioner of CGST, Thane                                ........Respondent\n 5th Floor, CGST Bhawan, Accel House,\n Road No. 22, Wagale Industrial Estate,\n Thane (W) - 400 604.APPERANCE:Shri D. H. Nadkarni, Advocate for the Appellant\n\n Shri Prabhakar Sharma, Superintendent, Authorised Representative for the\n Respondent\n\nCORAM:HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)\nHON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL)\n\n      FINAL ORDER NO.            A/85550/2023\n\n                                                Date of Hearing: 31.03.2023\n                                                Date of Decision: 31.03.2023\n\n\n\nPER: Dr. Suvendu Kumar Pati\n\n\n      Legality of Adjudication order confirming imposition of Service\n\ntax on the basis of turnover shown in the Income tax returns of 2013-\n\n14 and rejection of Appellant's appeal filed before the Commissioner\n\n(Appeals) challenging such order, solely on the ground of none\n\npayment of required pre-deposit amount in cash, is assailed in this\n\nappeal.Service Tax Appeal No. 85318 of 202322.   We have heard both the sides and perused the case record. On\n\nperusal of the case record it is observed that the Commissioner\n\n(Appeals), Thane GST and Central Excise, Mumbai in his order dated\n\n10.05.2022 had observed that pre-deposit of Rs.4,33,000/- (Four\n\nLakh Thirty Three Thousand Only) @ 7.5% of the disputed amount\n\nwas paid by the Appellant through ITC (Input Tax Credit) reversal in\n\nGSTR-3B, which is meant for discharge of shortfall of tax liability in\n\nrelation to CGST law but it mandates that deposit required to be made\n\nunder the erstwhile law was to be made under the provision available\n\ntherein. Placing reliance to Board Circular No. 984/8/2014-CX dated\n\n16.09.2014 he had dismissed the appeal for non-compliance ofSection\n\n35Fof the Central Excise Act 1944. Before coming to the issue, we\n\nconsider it appropriate to reproduce the relevant provision contained\n\nin Section 35F and the Board Circular No. 984/8/2014-CX dated\n\n16.09.2014, referred above."Section 35F. Deposit of certain percentage of duty\n     demanded or penalty imposed before filing appeal.The Tribunal or the Commissioner (Appeals), as the case\n     may be, shall not entertain any appeal,- (i) under sub-\n     section (1) ofsection 35, unless the appellant has deposited\n     seven and a half per cent. of the duty, in case where duty or\n     duty and penalty are in dispute, or penalty, where such\n     penalty is in dispute, in pursuance of a decision or an order\n     passed by an officer of Central Excise lower in rank than the\n     [Principal Commissioner of Central Excise or Commissioner\n     of Central Excise" (Underlined to emphasise)\n\n     Relevant portion of Board Circular No. 984/8/2014-CX dated\n\n16.09.2014 reads:"In case of any short-payment or non-payment of the\n      amount stipulated under Section 35F of the Central Excise\n                                                     Service Tax Appeal No. 85318 of 20233Act, 1944 orSection 129Eof the Customs Act, 1962, the\n      appeal filed by the Appellant is liable for rejection."3.    From the above referred two provisions vis-à-vis the case on\n\nhand, it can be stated that appeal should not be admitted for hearing\n\nby the Commissioner (Appeals) in the event of non-compliance of the\n\nprovisions mentioned above but ones appeal is admitted for hearing\n\nCommissioner (Appeals) has to follow the dictates of law provided\n\nunder Section 35A(iv) and dispose of the appeal stating the points for\n\ndetermination and the decision thereon with reasons for such decision\n\nand he should not have disposed of the appeal after hearing the appeal\n\nonly for non-compliance of pre-deposit provisions in view of the\n\nwordings available in the text underlined above, namely "shall not\n\nentertain any appeal" and "appeal filed by the Appellant is liable for\n\nrejection". To put it otherwise, there is a difference between dismissal\n\nof appeal and rejection of the same. Therefore, while we endorse the\n\nreasons cited in the Commissioner (Appeals)'s order, in view of the\n\nrequirement of mandatory pre-deposit to be made under the erstwhileExcise Actand in view of the decisions passed in M/s Johnson Matthey\n\nChemical on dated 23.08.2022 by this Tribunal holding that pre-\n\ndeposit by debiting Electronic Credit Ledger                    is not     sufficient\n\ncompliance, on that score he could have rejected the appeal at the\n\nadmission stage and should not have dismissed the appeal without\n\npassing an order on merit.4.    Therefore, Having regard to the fact that Appellant had removed\n\nthe defects and paid the entire pre-deposit amount of 10% in cash\n                                                     Service Tax Appeal No. 85318 of 20234through Challan for filing appeal before the CESTAT, as has been noted\n\nin order dated 28.02.2023 for admitting the appeal, we consider it\n\nproper to remind the appeal back to the Commissioner (Appeals) for\n\ndetermination of issues and his finding on the same as contemplated\n\nin Section 35A(iv). Hence the order.THE ORDER5.       The appeal is allowed by way of remand to the Commissioner\n\n(Appeals) for re-hearing of appeal on merit and the order passed by\n\nthe Commissioner of GST & Central Excise (Appeals), Thane vide\n\nOrder-in-Appeal No. DL/245/APPEALS THANE/TH/2021-22 dated\n\n15.02.2022 is accordingly set aside.(Operative portion of the order pronounced in open court)\n\n\n\n\n                                                (Dr. Suvendu Kumar Pati)\n                                                        Member (Judicial)\n\n\n\n\n                                                         (Sanjiv Srivastava)\n                                                         Member (Technical)\n\n\nSujeet