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M/S. Aluminium & Glazing vs Commissioner Of Service Tax, Chennai

Customs Excise and Service Tax Appellate Tribunal6 January 2015

Ratio decidendi

The rule this decision rests on

The Tribunal, having been asked to stay recovery pending appeal, will not treat the appellate authority's dismissal of the appeal for non-compliance with a stay order as final where the appellant has been denied a hearing on the merits; it is therefore appropriate to remand the matter for a hearing on all questions of law, fact and evidence, conditional on the appellant depositing a specified sum within a fixed period.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIST/S/41787/2013 and ST/41980/2013

(Arising out of Order-in-Appeal No.190/2013 (MST) dated 10.6.2013 passed by the Commissioner of Central Excise (Appeals), Chennai)

M/s. Aluminium & Glazing Appellant

Vs.

Commissioner of Service Tax, Chennai Respondent

Appearance

Shri Joseph Prabhakar, Advocate for the Appellant Shri Paneersevam, AC for the Respondent

CORAM

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing: 06.01.2015 Date of Decision: 06.01.2015

Final Order No. 40004/2015

Per D.N. Panda

Learned counsel submits that the constitutional embargo of not taxing the commodities by Finance Act, 1994 is given go by in the adjudication. Similarly, the basic foundation of the adjudication has been lost in absence of any finding to the material fact on record. But the appellate authority without considering basic stratum of law has dismissed the appeal in limini for non-compliance to the stay order which has caused prejudice to the appellant for which the appellant is before Tribunal.

2. Considering the argument as above, to grant fair opportunity of hearing to appellant to raise all questions of law and fact as well as evidence before learned Commissioner (Appeals), appellant is directed to make deposit of Rs.8,00,000/- (Rupees eight lakhs only) within four weeks from today and produce the challan before learned Commissioner (Appeals) for fixation of date of hearing. The appellant shall make an application to that authority fairly stating compliance with this order passed today for fixation of hearing. On that date of fixation, without taking any adjournment, appellant shall cause appearance and explain its case both on facts and law. Learned Commissioner (Appeals) considering the question of law, facts and evidence including the law laid down in Uniworth Textiles Ltd. Vs. CCE, Raipur  2013 (288) ELT 161 (SC) shall pass appropriate order.

3. In the result, the stay application is disposed of and the appeal is remanded to the learned Commissioner (Appeals).

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. Panda) Technical Member Judicial Member

Rex

2

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