Anjora Enterprises vs Commr. Of Central Excise & Service ...
- CitationAppeal No.19-20/JSR/2013 dated-17/01/2013 passed by the Commissioner of Central Excise
Ratio decidendi
The rule this decision rests on
Where a first-appellate authority has dismissed an appeal for non-appearance and for failure to explain a delay of 53 days, without deciding the merits, and the delay is shown to be bona fide (here, the resignation of the person conversant with service tax matters), and the assessee has also failed to reply to the show cause notice or attend the adjudication hearing, the Tribunal may remand the matter to the adjudicating authority to decide the issue afresh, with all issues kept open and the assessee given adequate opportunity of hearing, subject to conditions such as deposit of an agreed sum and an undertaking to file a reply and participate in the proceedings.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Appeal No.19-20/JSR/2013 dated-17/01/2013 passed by the Commissioner of Central Excise & Service Tax, Jamshedpur)
For approval and signature of: DR. D.M. MISRA, HONBLE JUDICIAL MEMBER SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER
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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?
Anjora Enterprises
APPELLANT(S) VERSUS Commr. of Central Excise & Service Tax-JSR RESPONDENT(S)
APPEARANCE
Sri S.P. Siddhanta, Consultant FOR APPELLANT(S) Sri S.S. Chakraborty, Supdt., (A.R.) FOR THE RESPONDENT(S)
CORAM: DR. D.M. MISRA, HONBLE JUDICIAL MEMBER SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 08/10/2015
ORDER NO : FO/75564-65/15 Per DR. D.M. MISRA Heard both sides.
2. These two applications are filed seeking waiver of pre-deposit of Service Tax of Rs.58,010/- and equal amount of penalty (Appeal No. 70340/13) and Rs.81,425/- and equal amount of penalty (Appeal No. 70341/2013).
3. Ld. A.R. for the Revenue submits that the Ld. Commissioner has dismissed both the appeals for non-appearance as well as for not furnishing proper explanation fordelay of 53 days in filing the appeal before him. He submits that the appeal has not been decided on merit.
4. Ld. Consultant Shri Siddhanta submits that the applicant is a proprietorship concern and are not conversant with the detail procedures of service tax matter. Therefore, they could not reply to the show cause notice nor attended the personal hearing. He submits that the matter may be remanded to the adjudicating authority so as to enable them to defend the case. At this stage, in both the cases, he makes an offer to deposit Rs.25,000/-.
5. Ld. A.R. for the Revenue has no objection in remanding the case to the adjudicating authority.
6. After hearing both the sides for sometime, we find that the appeals itself could be disposed off at this stage. Accordingly, the appeals are taken up for disposal with the consent of both sides.
7. We find that the issue has not been decided on merit but dismissed by the Ld. Commissioner (Appeals) as no proper explanation for delay in filing the appeal before him was furnished. Explaining the delay in their memorandum of appeal before this Forum, the appellants have submitted that due to the resignation of the concerned person conversant with service tax matters, the appeals could not be filed in time. We are of the opinion that the delay caused by the appellants are bonafide and deserves to be condoned. Also, we find that the appellants have not filed the reply to the show cause notice nor attended the personal hearing before the adjudicating authority. Therefore, remanding the case to the Ld. Commissioner (Appeal) would not meet the end of justice. Accordingly, in the interest of justice, it would be appropriate to remand the matter to the adjudicating authority for deciding the issue afresh. However, in remanding the case the Appellant put into terms. Consequently, the appellant is directed to deposit the offered amount of Rs.25,000/- with the Department within eight weeks from the date of communication of this order and the Ld. Adjudicating authority after recording compliance would proceed with the adjudication. The Ld. Consultant at this stage undertakes to file the reply to the show cause notice and participate in the adjudication proceedings. Accordingly, the appellants are directed to file reply to the notice within one month from the date of compliance. All issues are kept open. Needless to mention that adequate opportunity of hearing be given to the appellant. The appeals are allowed by way of remand. S.P.s disposed off.
(Dictated and pronounced in the open Court) Sd/- 12/10/15 Sd/- 12/10/15 (H.K. THAKUR) (D.M. MISRA) Technical Member Judicial Member
k.b/-
Service Tax Appeal Nos. : 70340, 70341/2013
4
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