M/S Pragmatic Builders Pvt. Ltd vs Commissioner Of Service Tax
- CitationAppeal No. ST/85322/14
Ratio decidendi
The rule this decision rests on
The Tribunal dispenses with the pre-deposit condition where the appellant's principal grievance is that the adjudicating authority denied an effective personal hearing and failed to extend the benefit of applicable notifications, and it proceeds to hear the appeal on that basis. Where an adjudicating authority passes an order without waiting for a reply the assessee has specifically sought time to file, and without considering that reply, the order is not passed after due consideration of the assessee's case and is liable to be set aside on the ground of denial of natural justice, the Tribunal having power to remand the matter for fresh adjudication. A Tribunal may make remand conditional upon the assessee's compliance with specified terms, namely an additional deposit within a fixed period, filing of a detailed reply within a fixed period, and reporting compliance before the adjudicating authority, with the consequence that on default the adjudicating authority may proceed to dispose of the matter, and on compliance it must follow the principles of natural justice before reaching any conclusion.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT No. I
Application No. ST/S/92696/14 in Appeal No. ST/85322/14
(Arising out of Order-in-Original No. 59/ST-II/RS/2013 dated 30.09.2013 passed by Commissioner of Service Tax, Mumbai II)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)
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1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
M/s Pragmatic Builders Pvt. Ltd. Appellant Vs.
Commissioner of Service Tax, Mumbai Respondent
Appearance:
Shri Ravi Holeni, C.A. for appellant Shri R.K. Das, Deputy Commissioner (AR) for respondent
CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical)
Date of Hearing: 06.07.2015 Date of Decision: 06.07.2015
ORDER NO
Per: M.V. Ravindran
This stay petition is filed for waiver of pre-deposit of an amount confirmed as service tax liability, interest thereof and penalties imposed by the adjudicating authority.
2. After hearing both sides at length, we find that the main grievance of the appellant is that the adjudicating authority has not given them effective personal hearing despite seeking specifically. It is also the submission of appellant that the adjudicating authority has not extended the benefits of various notifications as applicable to the services rendered by them. We find it so. Accordingly after dispensing with the condition of pre-deposit of amounts we take up the appeal for disposal.
3. We take up the appeal also for disposal as we find that the adjudicating authority in para 6 as recorded that the appellant had appeared for personal hearing before him on 28.05.2012 and sought an adjournment as also two months time for filing reply. Despite such a specific request from the appellant made before him, the adjudicating authority passed an order without waiting for the reply from the appellant. We notice that the adjudicating authority has passed an order on 28.10.2013. In our view, he could have waited for the reply or reminded appellant to file reply. He has recorded that the noticee has been given three opportunities of personal hearing; on this point also we find that appellant seems to have appeared before the lower authority on 28.05.2012 while the opportunities which were granted to them seem to be on 24.05.2012, 08.08.2012 and 23.08.2012. In our view, the impugned order has not considered the request of the appellant in its proper perspective and has been passed without considering an effective reply. However, we also find that the appellant has been non-co-operative with the adjudicating authority, in as much despite giving an undertaking that they will file reply within two months they have not done so. It is the submission of the learned C.A that they requested the adjudicating authority to club the show-cause notices issued to be replied to Commissioner, Raipur and they were waiting for the correspondence from the department, will not carry the case any further, as per provisions a show-cause notice which has been issued to be replied to Raipur Commissioner cannot be adjudicated by the Commissioner in Mumbai. We find that the appellant should be put to some conditions for remanding the matter back to the adjudicating authority. Accordingly, we direct the appellant herein to deposit an amount of Rs.10 lakhs (Rupees ten lakhs only) in addition to the amount already deposited within four weeks and report compliance before the adjudicating authority on 14.09.2015. The appellant is directed to file detailed reply within four weeks from today to the adjudicating authority. Adjudicating authority on receipt of such reply will take up the matter for adjudication after ascertaining the compliance of deposit of Rs.10 lakhs.
4. Needless to say that if the appellant does not comply with the filing of reply within four weeks and the order of deposit by 14.09.2015, the adjudicating authority can proceed in the matter and dispose of the same but if the appellant complied with the conditions laid down as indicated herein above, adjudicating authority will follow the principles of natural justice before coming to any conclusion.
5. Appeal disposed of by way of remand as indicated herein above.
(Dictated in Court)
(Raju) Member (Technical) (M.V. Ravindran) Member (Judicial)
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