CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R. K. Puram, New Delhi, Court No. 1
Date of hearing/decision: 08.07.2014
For Approval and Signature:
Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R. K. Singh, Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of 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?
S. T. Appeal No. 56288 of 2013 and S.T. stay No. 56765 of 2013
(Arising out of order in appeal No. 54/ST/Appl/CHD-II/2013 dated 08.02.2013 passed by the Commissioner (Appeals) Central Excise, Chandigarh).
M/s Sarwan Singh Dhiman & Sons Appellants
Vs.
CCE, Chandigarh-II Respondent
Appearance: Sh. Rakesh K. Khanna, Advocate for the appellant
Sh. Govind Dixit, DR for the Revenue
Coram: Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R.K. Singh, Member (Technical)
Final Order No. 52750/2014
Per: Justice G. Raghuram:
The Additional Commissioner, Chandigarh-II passed an adjudication order dated 31.01.2012 confirming service tax demand of Rs.39,92,886/- apart from interest and penalties while eschewing imposition penalty under Section 76 of the Finance Act on the ground that the appellant/ assessee has provided construction and residential complex/ commercial or industrial construction services during the period 2005-06 to 2007-08. This order was passed pursuant to the show cause notice dated 21.10.2010. Aggrieved, the appellant herein preferred an appeal before the Commissioner (Appeals), Chandigarh.
2. On 09.11.2012, the appellate Commissioner issued a notice to the appellant intimating personal hearing of the stay application on 20.11.2012. On 20.11.2012, the appellant addressed a request for adjournment of hearing of the stay application scheduled on 20.11.2012, on the ground the concerned official was unavailable and sought rescheduling of the hearing to another date. This application was served on the office of the appellate Commissioner and stands acknowledged under a stamped receipt of even date. The appellate Commissioner however disposed of the stay application ex-parte on 06.12.2012, on the merits of the stay application; found strength and prima-facie case in favour of the appellant though without indicating for what reasons; and granted waiver of pre-deposit on condition of deposit of Rs. 10 lakh each towards the assessed liability to tax and penalty respectively and directed the said deposit be made within fifteen days. This order does not advert to the appellant s request (dated 20.11.2012) seeking adjournment of the stay application.
3. The impugned order dated 08.02.2013 rejected assessee s appeal for failure to pre-deposit in terms of the order dated 10.12.2012 (06.12.2012). Hence this appeal.
4. The pre-deposit order dated 06.12.2012 is also assailed on the ground that this order was passed without adverting to request dated 20.11.2012 (for adjournment of hearing of the stay application) and without intimation of another date for hearing of the stay application.
5. From the facts and circumstances above, since the appellant / assessee addressed a request on 20.11.2012 (prior to the pre-deposit order dated 06.12.2012) seeking adjournment of the stay application, the learned appellate Commissioner was required to deal with such request and even if were inclined to reject the request for adjournment should have granted another date for personal hearing. This infirmity vitiates the pre-deposit order dated 06.12.2012 and that being the sole basis for the impugned order dated 08.02.2013 (mentioned as 11.02.2013) the impugned order invites invalidation and is quashed. The pre-deposit order dated 06.12.2012 (mentioned as 10.12.2012) is also quashed. The stay application preferred alongwith the appeal to the Commissioner (Appeals) is restored and the appellate Commissioner is directed to decide the stay application afresh, after issuing a notice for personal hearing to the appellant. Appeal is allowed as above.
2. No order to costs.
(Justice G. Raghuram)
President
(R. K. Singh)
Member (Technical)
Pant
West Block No.2, R. K. Puram, New Delhi, Court No. 1
Date of hearing/decision: 08.07.2014
For Approval and Signature:
Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R. K. Singh, Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of 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?
S. T. Appeal No. 56288 of 2013 and S.T. stay No. 56765 of 2013
(Arising out of order in appeal No. 54/ST/Appl/CHD-II/2013 dated 08.02.2013 passed by the Commissioner (Appeals) Central Excise, Chandigarh).
M/s Sarwan Singh Dhiman & Sons Appellants
Vs.
CCE, Chandigarh-II Respondent
Appearance: Sh. Rakesh K. Khanna, Advocate for the appellant
Sh. Govind Dixit, DR for the Revenue
Coram: Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R.K. Singh, Member (Technical)
Final Order No. 52750/2014
Per: Justice G. Raghuram:
The Additional Commissioner, Chandigarh-II passed an adjudication order dated 31.01.2012 confirming service tax demand of Rs.39,92,886/- apart from interest and penalties while eschewing imposition penalty under Section 76 of the Finance Act on the ground that the appellant/ assessee has provided construction and residential complex/ commercial or industrial construction services during the period 2005-06 to 2007-08. This order was passed pursuant to the show cause notice dated 21.10.2010. Aggrieved, the appellant herein preferred an appeal before the Commissioner (Appeals), Chandigarh.
2. On 09.11.2012, the appellate Commissioner issued a notice to the appellant intimating personal hearing of the stay application on 20.11.2012. On 20.11.2012, the appellant addressed a request for adjournment of hearing of the stay application scheduled on 20.11.2012, on the ground the concerned official was unavailable and sought rescheduling of the hearing to another date. This application was served on the office of the appellate Commissioner and stands acknowledged under a stamped receipt of even date. The appellate Commissioner however disposed of the stay application ex-parte on 06.12.2012, on the merits of the stay application; found strength and prima-facie case in favour of the appellant though without indicating for what reasons; and granted waiver of pre-deposit on condition of deposit of Rs. 10 lakh each towards the assessed liability to tax and penalty respectively and directed the said deposit be made within fifteen days. This order does not advert to the appellant s request (dated 20.11.2012) seeking adjournment of the stay application.
3. The impugned order dated 08.02.2013 rejected assessee s appeal for failure to pre-deposit in terms of the order dated 10.12.2012 (06.12.2012). Hence this appeal.
4. The pre-deposit order dated 06.12.2012 is also assailed on the ground that this order was passed without adverting to request dated 20.11.2012 (for adjournment of hearing of the stay application) and without intimation of another date for hearing of the stay application.
5. From the facts and circumstances above, since the appellant / assessee addressed a request on 20.11.2012 (prior to the pre-deposit order dated 06.12.2012) seeking adjournment of the stay application, the learned appellate Commissioner was required to deal with such request and even if were inclined to reject the request for adjournment should have granted another date for personal hearing. This infirmity vitiates the pre-deposit order dated 06.12.2012 and that being the sole basis for the impugned order dated 08.02.2013 (mentioned as 11.02.2013) the impugned order invites invalidation and is quashed. The pre-deposit order dated 06.12.2012 (mentioned as 10.12.2012) is also quashed. The stay application preferred alongwith the appeal to the Commissioner (Appeals) is restored and the appellate Commissioner is directed to decide the stay application afresh, after issuing a notice for personal hearing to the appellant. Appeal is allowed as above.
2. No order to costs.
(Justice G. Raghuram)
President
(R. K. Singh)
Member (Technical)
Pant
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