2011 (8) TMI 410 - AT - Service Tax

Principle of natural justice - non submission of reply to SCN - Cleaning activity service - Based on auditors advice, the appellant paid the full amount of service tax with interest - Appellant presumed that with this payment the matter reached the end since the show cause notice had been issued earlier and the audit was undertaken by the Departmental Audit Officers - Being a small labour service contractor and not well aware of that law,appellant did not attend the personal hearings also - Commissioner (appeals) rejected the submissions considering as additional ground - Held that - matter remitted back to the original adjudicating authority who shall decide the issue on merits after giving reasonable opportunity to the appellant to present their case.

Summary

Issues:
Late filing of ST-3 returns, short payment of service tax, penalty imposition, non-appearance before original adjudicating authority, grounds for appeal rejection, observance of principles of natural justice.

Late Filing of ST-3 Returns and Short Payment of Service Tax:
The appellant, engaged in cleaning activity service, was found to have filed ST-3 returns late and short paid service tax amounting to Rs. 1,05,076 during April 2007 to March 2008. Proceedings were initiated through a show cause notice in October 2008. The appellant did not respond to the notice or appear for a personal hearing. The Order-in-Original confirmed the demand for service tax, imposed penalties under Sections 76 and 77, and demanded interest.

Non-Appearance Before Original Adjudicating Authority and Grounds for Appeal Rejection:
The appellant failed to defend the case before the original adjudicating authority, leading to the rejection of the appeal. The Commissioner (Appeals) rejected the appeal on the basis that new grounds cannot be put forth if not defended initially, citing Rule 5 of Central Excise (Appeals) Rules, 2001.

Observance of Principles of Natural Justice:
The appellant argued that the show cause notice was issued before an audit in October 2008, and based on advice from audit officers in November 2008, the appellant paid the full service tax with interest. The appellant, being a small labor service contractor, claimed lack of awareness of the law and did not attend personal hearings. The appellant contended that valid grounds existed to seek lenient treatment under Section 73(3) or Section 80 of the Finance Act, 1994. The appellant criticized the rejection of submissions by the Commissioner (Appeals) as a violation of natural justice, despite the appellant's contribution to the oversight.

Judgment and Remand:
The Tribunal acknowledged the peculiar circumstances where the audit followed the show cause notice, leading the appellant to believe the matter was resolved upon payment. Considering the appellant's lack of defense and potential grounds for leniency, the Tribunal deemed it necessary to remand the matter to the original adjudicating authority for a decision on merits after affording the appellant a reasonable opportunity to present their case. The Tribunal set aside the impugned order, allowing the appeal and emphasizing the observance of natural justice principles in the case.