Custom, Excise & Service Tax Tribunal
Nahida Nasreen vs Hyderabad - G S T on 16 April, 2025
(1) Appeal No. ST/3200/2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
HYDERABAD
REGIONAL BENCH - COURT NO. - I
Service Tax Appeal No. 3200 of 2012
(Arising out of Order-in-Appeal No.162/2012(H-III)ST dated 24.08.2012 passed by
Commissioner of Customs, Central Excise & Service Tax (Appeals-I & III), Hyderabad)
Nahida Nasreen .. APPELLANT
D/o Habeebuddin,
H.No. 11-23-1368,
LB Nagar, Warangal,
Telangana - 506 002.
VERSUS
Commissioner of Central Tax .. RESPONDENT
Hyderabad - GST Kendriya Shulk Bhavan, L.B. Stadium Road, Basheerbagh, Hyderabad, Telangana - 500 004.
APPEARANCE:
None for the Appellant.
Shri V. Srikanth Rao, Authorised Representative for the Respondent. CORAM: HON'BLE Mr. A.K. JYOTISHI, MEMBER (TECHNICAL) HON'BLE Mr. ANGAD PRASAD, MEMBER (JUDICIAL) FINAL ORDER No. A/30124/2025 Date of Hearing:06.03.2025 Date of Decision:16.04.2025 [ORDER PER: ANGAD PRASAD] Naheeda Nasreen (hereinafter referred to as appellant) has filed this appeal against the Order-in-Appeal dated 24.08.2012, by which appeal was dismissed for non-compliance of the conditions in terms of Section 35F of the Central Excise Act, 1944.
2. Brief fact of the case is that the appellant is the owner of the bus. Andhra Pradesh Stated Road Transport Corporation (APSRTC) is an organisation owned by the Government of Andhra Pradesh providing road transport service for travelling of public of Andhra Pradesh (AP), through the fleet of Buses owned by them. Since the number of buses owned by (2) Appeal No. ST/3200/2012 APSRTC is not sufficient to cope with the ever increasing travelling needs of bus passengers in AP, it has turned to private bus owners to reduce the shortage in their fleet to certain extent and improve the services provided by them. APSRTC, entered into an agreement with the appellant for giving the bus to the Corporation, for their use only for the purpose of providing bus service to the people of Andhra Pradesh.
3. APSTRC entered into an agreement with over 5000 bus owners for use of buses by APSRTC and for providing bus services to the people of Andhra Pradesh. The Show Cause Notice dated 15.04.2011 was issued against the appellant on the ground that the activity of let out of the buses to the APSRTC for their use by the appellants are liable for payment of service tax under the category of "Rent-a-Cab Service". Appellant submitted their reply rebutting the allegations.
4. After hearing to the appellant, Adjudicating Authority passed the Order-in-Original No. 95/2012 -S.TAX dated 03.03.2012 and confirmed the demand of Rs. 2,17,359/- for the period from August 2007 to September 2010 towards service tax payable on the activity of giving bus by the appellant to APSRTC under the category of Rent-a-Cab service under proviso to Section 73(2) of the Finance Act 1994. The appellant filed an appeal against the Order-in-Original before the Commissioner (Appeals-III), Hyderabad. Commissioner (Appeals) vide order dated 13.08.2012 directed the appellant to deposit 10% of the total liability. However, Appellant could not deposit the same due to some reasons. Commissioner (Appeals), thereafter dismissed their appeal for non-compliance to the condition of stay granted as conditions for said stay were not met. The appellant is in appeal before CESTAT against the said order.
(3) Appeal No. ST/3200/2012
5. Learned AR for the Department states that appellant has failed to comply as directed by the Commissioner (Appeals) vide order in his Stay Petition No. 132/2012-(H-III)ST dated 13.08.2012 to deposit 10% of the total liability. It was mandatory for appellant to pre-deposit the amount as directed by Learned Commissioner (Appeals). It was mandatory before deciding the appeal on merit. Hence, appeal was dismissed on this ground itself. Therefore, Tribunal cannot take up the case for decision on merit.
6. None is responding from several hearings in spite of notice. No one present to argue for the appellant. Heard argument of Learned AR for the Department to decide on merit of the case on the basis of materials in record as provided under Rules 20 of Customs Excise and CESTAT procedural Rules, 1982.
7. Learned Commissioner in appeal hold that appellant failed to comply with the condition of pre-deposit despite the fact that the amount of pre- deposit was restricted only to the extent of 10% of the service tax amount. Appellant was given sufficient time to comply to pre-deposit inspite of appellant failed to deposit which was mandatory under Section 35F of Central Excise Act, 1944.
8. Section 35F of Central Excise Act 1944 before substitution by the Act 25 of 2014 is stood as under:
"35F. Deposit, pending appeal of duty demanded or penalty levied --- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (4) Appeal No. ST/3200/2012 (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.
Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.
9. Department is also placing reliance in the case of Union of India Vs Aakar Advertising [2008 (11) STR 5 (Raj)] in which Hon'ble High Court of Rajasthan - Jodhpur decided that Tribunal could not entertain appeal on merit when impugned order dismissing appeal for non-payment of pre- deposit not paid dismissal of appeal by Commissioner (Appeals) sustainable and Tribunal not empowered to entertain appeal on merit.
10. Therefore, no need to decide the appeal on merit, since appellant failed to pre-deposit as directed by the Commissioner (Appeals), as required under Section 35F of the CEA 1944. Therefore, appeal is not maintainable as per law and facts of the case and liable to be dismissed on this ground itself.
11. Therefore, appeal is dismissed.
(Order Pronounced in open court on_16.04.2025_) (A.K. JYOTISHI) MEMBER (TECHNICAL) (ANGAD PRASAD) MEMBER (JUDICIAL) jaya