M/S. Signal Security & Intelligence ... vs Commissioner Of Central Excise & ...

(Arising out of Order-in-Appeal No.21/ST/BBSR-I/2013 dated 22.03.2013 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)

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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. Signal Security & Intelligence Services (P) Ltd. Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise & Service Tax, BBSR-I Respondent (s)

Appearance:

Shri C.R.Das, Advocate for the Appellant (s)

Shri A.K.Biswas, Sudpt.(AR) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)

Date of Hearing:- 21.09.2015 Date of Pronouncement :- 21.09.2015

ORDER NO.FO/A/75617/2015

Per Dr. D.M. Misra.

Heard both sides

1. This is an application for waiver of pre-deposit of Service Tax of Rs.3.43 Lakhs and equal amount of penalty imposed under section 78 and penalties under other provisions of Finance Act, 1994.

2. At the outset, Shri C.R.Das, ld.Advocate for the Applicant submitted that the applicant have neither received the show cause notice nor received the impugned Order-in-Original in time; they collected the Order-in-Original dt.28.02.2011 in person from the Central Excise department on 13.12.2012. He submits after receipt of the order, being aggrieved, they filed an appeal on under Sec. 85 of Finance Act,1994 against the said Order-in-Original, before the Commissioner(Appeals) on 14.02.2013. However, the Ld. Commissioner (Appeals) has dismissed their Appeal on the ground of delay of 716 days assuming the date of communication as 01.3.2011.

3. To ascertain the aforesaid claim of the applicant on non-receipt of the O-in-O as on 01.03.2011 being observed by the Ld. Commissioner(Appeals), this Bench directed the Revenue to produce the original adjudication file, on 22.11.2014 and adjourned the matter to 12.01.2015. However, since the said file was not produced inspite of request from JCDRs office, to the respective commissionerate, a Miscellaneous Order was passed by the Bench on 26.05.2015 with a direction to the Commissioner of Central Excise & Service Tax, Bhubaneswar to produce the said file; and for effective implementation of the said direction, a copy of the Order was also endorsed to the Chief Commissioner of Central Excise & Service Tax, Bhubaneswar. Consequently, the matter was adjourned. On 20.08.2015 o the ld.AR for the Revenue brought to our notice that neither any communication nor the file has been received from the respective Commissionerate, accordingly, at his request the Matter was again adjourned to 21.09.2015. Today also, the ld.AR expressed his inability to place original adjudication file before this Tribunal as no communication in this regard has been received by their office from the respective commissionerate. He has fairly agreed that the ld. Commissioner(Appeals) has not decided case on merit but dismissed the appeal only on the ground of delay of 716 days.

4. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit, we take of the appeal for disposal with the consent of both sides.

5. We find that the categorical claim of the appellant that they have not received the copy of the Order-in-Original dt.28.02.2011, on 01.03.2011 as recorded by the Ld. Commissioner(Appeals) in the impugned Order, but the same was collected by them in person on 13.12.2012 and thereafter the appeal was filed within the statutory period as prescribed under section 85 of Finance Act, 1994. Whereas, the ld. Commissioner(Appeals) considering the date of communication as 01.3.2011 has observed that there has been a delay of 716 days in preferring the Appeal before him. Thus the fact in issue needs to be decided is whether the Order-in-Original was communicated to the applicant on 01.03.2011 as recorded by the ld. Commissioner(Appeals) or communicated to the appellant on 13.12.2012 as claimed by the appellant. The source to ascertain the correctness of the rival claims is to look into the original adjudication file where from the actual delivery/dispatch of the Order-in-Original to the applicant had been effected. This Tribunal initially directed the Ld. A.R to place the file and later passed a Misc.

Order endorsing a copy to the Chief Commissioner for production of such file. We regret to note that in spite of sufficient opportunities accorded to the Revenue to place the original file, they have failed to produce the same leading to an inevitable adverse inference that had the file produced the fact would have been decided against the Revenue. In these circumstances we do not have any other alternative but to accept the claim of the appellant. Accordingly, to meet the ends of justice, we accept the date of communication as 13.12.2012 as correct and accordingly hold that the appeal has been filed in time before the Ld. Commissioner(Appeals). In normal circumstances, since the Ld. Commissioner(Appeals) has not decided the case on merit, we would have remanded the case to the Ld. Commissioner(Appeals) for deciding the issue afresh on merit, but in the present case the appellant had vehemently argued that they had neither received the show cause notice nor filed their reply. Therefore, remanding the case to the ld. Commissioner(Appeals) would be an empty formality. Consequently, to meet the ends of justice, it is prudent to remand the matter to the adjudicating authority with a direction to the department to serve a copy of the Show Cause Notice; the Appellant is also directed to file their reply to the show cause notice within four weeks from the date of receipt of such notice and participate in the adjudication proceeding.

In the result, the impugned order is set aside and with the consent of both sides the matter is remanded to the original adjudicating authority for deciding the issues afresh. All issues are kept open. Needless to mention a reasonable opportunity of hearing be granted to the appellant. It is in the interest of the appellant that they should furnish their address for communication to the adjudicating authority at the earliest. Appeal is allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL)

sm

5 Appeal No.ST-70561/13