CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL MUMBAI WEST ZONAL BENCH Service Tax Appeal No. 87670 OF 2023 (Arising out of Order-in-Appeal No. SK-359-APPEALS-II-MC-2023-24 dated 31.10.2023 passed by the Commissioner of CGST & C.Ex.

(Appeals-II), Mumbai Sustainancy …..Appellant B-404 Kanakia Rainforest Bhawani Nagar, Marol, Mumbai VERSUS Commissioner of CGST & Central Excise, …..Respondent Mumbai Central

4^th Floor, Central Excise Bldg., Churchgate Mumbai APPEARANCE:

Shri Anantha Kandait, Advocate for the appellant Shri S B P Sinha, Superintendent (AR) for the respondent CORAM:

HON’BLE MR. AJAY SHARMA, MEMBER (JUDICIAL)

FINAL ORDER No: 85185/2026 DATE OF HEARING : 23.07.2025 DATE OF DECISION : 21.01.2026 This appeal has been filed against the Order-in-Appeal dated 31.10.2023 passed by the Commissioner (Appeals)-II, CGST & C.Ex., Mumbai rejecting the appeal filed by the appellant at the threshold without going into the merits for non- compliance with the mandatory pre-deposit requirement prescribed u/s.35F of Central Excise Act, 1944 as applicable to Service Tax by virtue of Section 83 of the Finance Act, 1994.

2. The impugned order herein was passed by the learned Commissioner (Appeals) in the 2^nd round of litigation. The initial dispute arises from confirmation of service tax demand of Rs.2,45,468/- along with interest and penalties under various provisions of the Finance Act, 1994 vide Order-in-Original dated 04.03.2021 passed by the then Adjudicating Authority. Against the said order, the appellant preferred an appeal before the Commissioner (Appeals) after making mandatory pre-deposit of Rs.37,571/- as required u/s. 35F ibid. The then Commissioner (Appeals) vide Order-in-Appeal dated 30.03.2022, remanded the matter to the adjudicating authority for reconsideration. Pursuant thereto, in the second round, the Adjudicating Authority passed Order-in-Original dated 31.10.2022, confirming the demand of Rs.1,61,829/- while dropping a demand of Rs.83,639/- pertaining to the period April, 2015 to June, 2017, along with interest and penalty. The Adjudicating Authority also appropriated an amount of Rs.17,063/- already paid by the appellant towards the confirmed demand.

3. Aggrieved by the said confirmed demand, the appellant once again preferred an appeal before the Commissioner (Appeals). However, the said appeal came to be rejected vide the impugned Order-in-Appeal dated 31.10.2023 solely on the ground of non-payment of mandatory pre-deposit, without entering into the merits of the case.

4. The learned counsel for the appellant submits that the mandatory pre-deposit of Rs.37,571/- made on 07.09.2021 in the first round of appellate proceedings was never withdrawn by the appellant and continues to remain with the department. It was contended that the said pre-deposit ought to have been considered as sufficient compliance with the requirement of Section 35F ibid for the subsequent appeal arising out of the remand proceedings from the same show cause notice.

5. On the aforesaid plea of learned Counsel, learned Authorised Representative appearing on behalf of revenue was directed vide order dated 3.7.2025 to verify the status of the said pre-deposit. Pursuant thereto, a communication dated 15.7.2025 was sent to the learned Authorised Representative by the concerned Assistant Commissioner, which reads as under:-

“Please refer to your letter vide file no.

ST/876070/2023 dated 04.07.2025.

As per report submitted by the jurisdictional divisional office, the appellant has not filed any refund claim in category of refund of pre-deposit &

no such refund has been sanctioned.

Accordingly necessary action may be taken at your end for consideration of said pre-deposit towards the present appeal filed by the appellant.”

In view of the communication (supra), it is evident that the appellant had already complied with the statutory requirement of pre-deposit u/s. 35F ibid at the time of filing the appeal in the earlier round which has not been refunded and is avai