M/S. Shutter India vs Commr. Of Service Tax, Kolkata
- CitationService Tax Appeal No. 47/2012
Ratio decidendi
The rule this decision rests on
The Tribunal may remit a matter to the adjudicating authority for fresh decision, rather than decide the merits itself, where the assessee was prevented from defending itself before the original authority by circumstances that are reasonable, namely the proprietor's unfamiliarity with the service tax law, which resulted in the non-filing of a reply to the show cause notice and non-attendance at personal hearing, and where the assessee has already deposited a substantial part of the duty and offers a further deposit, so that the assessee is given a final opportunity to file its reply and be heard on the evidence on record.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Original No. 19/Commr./ST/Kol/2011-12 dated-08/09/2011 passed by the Commissioner of Service Tax, Kolkata)
For approval and signature of: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, 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 ?
M/s. Shutter India
APPELLANT(S) VERSUS Commr. of Service Tax, Kolkata
RESPONDENT(S)
APPEARANCE
Miss Shivani Shah, C.A. FOR APPELLANT(S) Sri A.K. Biswas, Supdt. (A.R.) FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 06/05/2015
ORDER NO : FO/75250/2015 Per DR.D.M. MISRA
This is an application filed seeking waiver of pre-deposit of Service Tax of Rs.1,07,62,137/- and equal amount of penalty imposed under Section 78 and penalty of Rs.5,000/- under Section 77 of Finance Act, 1994.
2. At the outset, the Ld. Chartered Accountant for the applicant has submitted that during the material period, the applicant, a proprietorship concern rendered services of supply of doors, windows, shutters against work orders to various clients. She submits that mere supply of the said material would not result in rendering services under the category of Commercial and Industrial Construction services and construction of complex services. She fairly submits that all the documents though available to establish their claim about non-taxability of all services rendered, however, the same could not be placed before the Ld. Commissioner during the course of adjudication and the order was passed ex parte. She submits that they have already paid an amount of Rs.7.25 Lakhs and makes an offer to deposit further amount of Rs.5.00 Lakhs and prays that the matter may be remanded to the Ld. Commissioner for deciding the issue afresh on merit.
3. Ld. A.R. for the Revenue reiterated the findings of the Ld. Commissioner.
4. After hearing both sides for sometime, we find that the appeal itself could be disposed off. Accordingly, we take up the appeal for final disposal with the consent of both sides.
5. We find that the Ld. Commissioner on the basis of evidence on records, decided the case on merit ex-parte as the appellant had failed to avail the opportunity on both the counts i.e. in filing the reply to the show cause notice and also appearing for personal hearing also. Furnishing reasons for the same, the Ld. Chartered Accountant submits that since the proprietress is a lady, she is not conversant with the Service Tax laws, therefore, neither she could file any reply to notice nor attended the personal hearing. The circumstances explained by the Ld. Chartered Accountant, seems to be reasonable. Consequently, considering that the appellant had already deposited Rs.7.25 Lakhs and makes an offer to deposit further amount of Rs.5.00 Lakhs, it is prudent to remit the case to the Ld. Commissioner to allow a final opportunity to the appellant to submit the reply to the show cause notice and appear for personal hearing before the adjudicating authority in support of their claim. In the result, the appellant is directed to deposit the offered amount of Rs.5.00 Lakhs (Rupees Five Lakhs) within eight weeks from the date of communication of this order and report compliance directly to the adjudicating authority. The Ld. Adjudicating authority after recording compliance would decide the matter afresh taking into consideration the evidences available on record and that would be filed by the appellant during the course of hearing. The Ld. Chartered Accountant for the appellant undertakes to file the reply to the show cause notice within four weeks from the date of communication of order. Appeal is allowed by way of remand. S.P. disposed off.
(Dictated and pronounced in the open court)
(I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) k.b/-
Service Tax Appeal No. 47/2012
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