2011 (6) TMI 51 - AT - Service Tax

Demand - The order in original has been passed ex-parte i.e. without receipt of reply from the respondent-assessee and without respondent-assessee appearing for personal hearing - The appeal has been filed before the Commissioner (Appeals) beyond stipulated period and also beyond the period for which the Commissioner (Appeals) has power to condone the delay - As the submissions and evidence sought to be produced by the department were not before the Commissioner (Appeals) - The department is permitted to produce evidence relied upon relating to service of order in original on the respondent-assessee within thirty days from the receipt of this order - The appeal is allowed by way of remand

Summary

Issues:
- Appeal against order confirming demand of service tax, interest, and penalty.
- Non-appearance of respondents during proceedings.
- Ex-parte order passed without respondent's reply or appearance.
- Commissioner (Appeals) setting aside original order without hearing department's representative.
- Lack of verification of service of order on respondent.
- Need for fresh consideration and evidence regarding service of order.

Analysis:
The appeal pertains to the department challenging the order confirming the demand of service tax, interest, and penalty, issued against the respondent. The Commissioner (Appeals) set aside the original order without hearing the department's representative, raising concerns about due process. The respondent failed to appear before the Tribunal despite notice, mirroring previous instances of non-appearance. The original order was passed ex-parte due to the respondent's failure to respond or attend the personal hearing. The Commissioner (Appeals) made a decision without granting the department a fair opportunity to present its case, which is a procedural irregularity.

The Tribunal noted discrepancies in the handling of the case, especially regarding the service of the order on the respondent. The department claimed the order was served on a specific date, but this information was not presented before the Commissioner (Appeals) for verification. The Tribunal found it necessary to remand the matter back to the Commissioner (Appeals) for fresh consideration. This decision allows the department to provide evidence related to the service of the original order within a specified timeframe. Both sides are to be given a fair opportunity for a hearing before a new decision is made.

In conclusion, the appeal was allowed for remand, emphasizing the importance of following due process and ensuring that all parties have a chance to present their case and evidence. The Tribunal's decision aims to rectify the procedural deficiencies and promote fairness in the adjudication process.