Shri Chetan Verma vs Cce -Raipur

[Arising out of order-in-appeal No. 69,70,71,72&73 (ST)/RPR-1/2013 dated 03/04/2013 passed by CCE-Raipur]

1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would 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 Department Authorities?

Shri Amit Sharma,

Shri Mahesh Kumar Nishad,

Shri Yogesh Dwivedi,

Shri Shekhar Jaiswal and

Shri Chetan Verma Appellants

Vs.

CCE -Raipur Respondents

Appearance: Shri Shekhar Vyas and Shri Arun Pathak, Advocate for the appellants.

Shri Govind Dixit, DR for the respondent.

Coram: Coram: Honble Mr. Justice G. Raghuram, President

Honble Shri R.K. Singh, Member (Technical)

Final Order No. 52031-52035/2015

Per: R.K. Singh

These stay applications and appeals have been filed against the impugned orders-in-appeal Nos. 69,70,71,72&73(ST)/RPR-1/2013 dated 03/04/2013 in terms of which the appellants appeals before the Commissioner (Appeals) were rejected taking recourse to Rule 5 of Central Excise (Appeals) Rules 2001 on the ground that the adjudicating authority did not have an opportunity to examine the grounds which were before him, i.e., Commissioner (Appeals).

2. We have perused the case records. We find that the 1st ground which was taken by the appellants before the Commissioner (Appeals) was that they did not receive any show cause notice or notice of hearing and the orders-in-original were passed without serving any show cause notice or notice of hearing. They also contended that they were not providing any cargo handling service under which the impugned demands were confirmed and said that they were only providing manpower and many of them have deposited service tax under manpower recruitment or supply service which had duly been appropriated in the respective orders-in- original. We find that the Commissioner (Appeals) has not dealt with these pleas of the appellants at all and has only observed that the appellants did not submit any reply to the show cause notice. Further, we find from the discussion / finding portion of the orders-in-original that there is no analysis whatsoever as to how the service rendered by the appellants fell under the category of cargo handling service. The discussion /findings portion of a typical order-in-original is reproduced below to demonstrate this fact:

I have carefully gone through the case file, allegation made in the Show Cause Notice, facts available on records and provisions of law having bearing on the issue. I find that the basic issue to be decided before me is whether the Service Tax amounting to Rs. 1,39,325/-+Education Cess of Rs. 2,787/- total Rs. 1,42,112/- should be recovered from the party under the head of Cargo Handling Agencys Service or otherwise.

I find that the party had provided Cargo Handling Agencys Service to their clients and had received payment against the taxable service provided by them.

The party did not bother to obtained registration neither paid service tax nor did they file ST-3 return thereby violated the provisions of Section 68, 69 and 70 of the Finance Act, 1994. They did not submit their reply to show cause notice neither appeared for personal hearing on the given dates and time.

All persons/assesses engaged in providing taxable service as defined under Section 65 of Chapter-V of the Finance Act, 1994 are required to get registered themselves and required to assess their taxable value, i.e., the value of service provided themselves to be declared in their ST-3 Returns filed under Section 70. I find that the party did not bother to abide by the laws, and wilfully suppressed their activity intentionally, by not obtaining registration and not paying service tax.

In view of the above, I am of opinion that extended period of five years as provided under the proviso to Section 73 of the Act is invokable in the case. In addition to this they are also liable to pay interest in terms of Section 75 of the Act. They are also liable for penalty under Section 76, 77 and 78 of the Act.

3. It is evident from the aforesaid typical discussion/finding portion of the orders-in-original that the adjudicating authority did not even devote a single sentence to analyse the service rendered by the appellant with a view to arriving at a finding that the said service fell under the category of cargo handling service. Thus, we find the orders-in-original nonspeaking; that apart, the appellants contention that they had not received any show cause notice has also not been dealt within in the impugned order-in-appeal and if true, the orders-in-original/ the impugned orders-in-appeal would be liable to be set-aside as having been issued in violation of the principles of natural Justice

4. In the light of the above discussion, we waive the requirement of pre-deposit and remand the cases to the primary adjudicating authority for de-novo adjudication after complying with the principles of natural Justice which would include service of the show cause notices on the appellants, if the same had not been served and providing them an opportunity of being heard. The stay applications and appeals are disposed of on these terms.

(Justice G Raghuram)

President

(R.K. Singh)

Member (Technical)

Ritu