2011 (2) TMI 173 - AT - Service Tax

Demand - Sub agent s commission - Circular No. 96/7/07-TRU dated 23.08.07 - It is settled legal position that consequent to amendment of Section 35A (3) w.e.f. 11.05.01, Commissioner (A) has no powers of remand - It is not known as to why the Assistant Commissioner chose not to give a personal hearing which is a clear violation of Principles of Natural Justice - the documents could not be produced by the respondents before the original authority - The appeal is allowed by way of remand

Summary

Issues:
Appeal against order of Commissioner (Appeals) dated 31.05.2010, demand for service tax on sub agent's commission, imposition of penalties, remand by Commissioner (A), violation of Principles of Natural Justice, power of remand post-amendment to Section 35A (3) of Central Excise Act.

Analysis:

1. The appeal was filed by the department against the order of the Commissioner (Appeals) dated 31.05.2010, with cross-objection No.ST/CO/40/10 connected to it. The respondents were issued a show cause notice demanding service tax on sub agent's commission for a specific period. The original authority confirmed the demand, interest, and penalties under relevant sections of the Finance Act, 1994. On appeal, the Commissioner (A) set aside the original authority's order and remanded the matter due to procedural irregularities.

2. The Ld. SDR argued that post-amendment to Section 35A (3) of the Central Excise Act, the Commissioner (A) lacked the power of remand and should not have done so, citing a Supreme Court decision in support. The Tribunal acknowledged the legal position that post-amendment, the Commissioner (A) could not remand matters. Additionally, the Assistant Commissioner's failure to provide a personal hearing was deemed a violation of Principles of Natural Justice, essential in administrative proceedings.

3. The Tribunal noted the disregard for natural justice principles by the original authority in not granting a personal hearing before passing the adjudication order. The lack of evidence provided by the respondents to prove the inclusion of charges in the main service provider's taxable value was highlighted. Despite the option to refer the matter to the Commissioner (A) or the Tribunal, the Tribunal deemed it appropriate for the original authority to reconsider the case, emphasizing the need for a fair hearing.

4. Consequently, the Tribunal set aside the orders of the Commissioner (A) and the original authority, remanding the matter to the original authority for fresh consideration after granting a reasonable opportunity of hearing to the respondents. The appeal was allowed by way of remand, and the cross-objection was disposed of accordingly. The decision emphasized the importance of adherence to procedural fairness and the right to a fair hearing in administrative proceedings.