2012 (10) TMI 103 - AT - Service Tax

Natural justice Held that - Original authority had denied natural justice to the party - copies of certain documents had not been supplied to the party in spite of their specific request. It appears, the party was driven from pillar to post whenever they requested for supply of the said documents. Certainly, the original authority was unfair to the party - It was incumbent on that authority to collect the documents from wherever they were and supply the same to the party to enable them to file an effective reply to the show-cause notice. We further note that no reasonable opportunity of being personally heard was given to the party either. Thus, the findings recorded by the Commissioner (Appeals) as regards natural justice are tenable - appeal allowed by way of remand

Summary

Issues: Delay in appeal, jurisdiction of appellate authority, natural justice

Delay in appeal:
The department's appeal was delayed by 6 days, and despite notice, no opposition was raised for condonation of the delay. The delay was satisfactorily explained, leading to the allowance of the COD application. The remaining application for stay of the impugned order was dismissed, and the appeal itself was taken up for disposal.

Jurisdiction of appellate authority:
The main objection raised in the appeal was that the appellate Commissioner's order was passed without jurisdiction as the appellate authority did not have the power of remand. The appellant relied on a Supreme Court judgment highlighting that the power of remand by the Commissioner (Appeals) had been taken away by Parliament. The Tribunal found merit in this objection, stating that the Commissioner (Appeals) should have decided on the substantive issue on merits instead of remanding the case for de novo adjudication. However, the reasons for setting aside the original order were considered valid, as certain documents were not supplied to the party despite specific requests, indicating a lack of natural justice.

Natural justice:
The Tribunal noted that the original authority had been unfair to the party by not supplying necessary documents and not providing a reasonable opportunity for the party to be personally heard. The findings of the Commissioner (Appeals) regarding natural justice were deemed acceptable. To ensure compliance with the principles of natural justice, the orders of both authorities were set aside, and the appeal was allowed by way of remand. The adjudicating authority was directed to supply all relied-upon documents to the party and offer a reasonable opportunity for replying to the show-cause notice and being personally heard. The stay application was also disposed of accordingly.