Judgment:
Per Mr. S.S. Kang:
1. A common issue is involved in all these applications, therefore, they are taken up together for disposal.
2. The applicants filed these applications for waiver of pre-deposit of total service tax amount of Rs.5,69,819/-, interest and penalties. Four show cause notices were issued to the applicants for demand of service tax on the ground that the applicants provided rent-a-cab operator service during the period April 2002 to July 2008 to M/s IFFCO.
3. The adjudicating authority under four orders confirmed the demand with interest and imposed penalties. The appellants filed appeals before Commissioner (Appeals) and the Commissioner (Appeals) directed them to deposit a part amount of service tax for hearing of the appeals. The appellants failed to comply with the condition stay order. Hence the appeals were dismissed for non-compliance of the provisions of Section 35Fof the Central Excise Act, 1944.
4. The contention of the applicants is that show cause notice was not received by the applicants and the adjudication order was passed ex-parte. In case the applicants are held to be provider of taxable service, the applicants are entitled for small scale exemption Notification No.9/2004-ST dated 9.7.2004 during the period in dispute and the benefit of small scale exemption notification was not considered while confirming the demand. The applicants also pleaded financial hardship on the ground that the applicants are small operator and the direction to deposit the amount would cause undue hardship to them.
5. The contention of Revenue is that the applicants had not claimed the benefit of small scale exemption notification before the adjudicating authority. The applicants provided taxable service and this fact was not disclosed to the Revenue. It is only from the records of M/s IFFCO, the Revenue came to know that the applicants are receiving payments in respect of the taxable service provided to him. Therefore, it is not a fit case for total waiver of service tax amount.
6. We find that the adjudication order is passed ex parte and the appeals filed before Commissioner (Appeals) were dismissed for non-compliance of the provisions of Section 35F of the Act. Keeping in view the facts and circumstances of the case and in view of the fact that the benefit of small scale exemption notification was not considered at the time of confirming the demands, the applicants are directed to deposit Rs.1 lakh (rupees one lakh) for hearing of the appeals. Subject to such pre-deposit of the remaining amount of the dues is waived.
7. As we find that the applicants had not appeared before the adjudicating authority and the benefit of small scale exemption notification is not taken into consideration while confirming the demands, the matter is remanded to the adjudicating authority after setting aside the impugned orders to pass a fresh order after affording an opportunity of hearing to the appellants. The appeals are disposed of by way of remand.
8. The applicant shall pre-deposit Rs.1.0 lakh (rupees one lakh) and produce evidence before the adjudicating authority within eight weeks from the receipt of the order. Thereafter, adjudication authority shall proceed with de novo adjudication.
9. Both stay petitions and appeals are disposed of.