2015 (3) TMI 745 - HC - Service Tax

Waiver of pre deposit - Opportunity of hearing not granted - Held that - When Annexure-D order was passed, admittedly, the counsel for the appellant was absent. Therefore, the said order was passed without hearing the appellant. Insofar as this Annexure-F order is concerned, reading of the order itself show that the Tribunal was more influenced by the limits of its jurisdiction in an application for review. Evidently therefore, both these orders are passed without appreciating the merits canvassed by the appellant. - Matter remanded back - Decided in favour of assessee.

Summary

Issues: Challenge to order in original, Application for waiving pre-deposit and stay, Absence of counsel during Tribunal hearing, Rejection of modification application, Review of Tribunal orders, Remittal of matter back to Tribunal.

In this case, the appellant challenged an order in original by filing an appeal before the Tribunal along with an application for waiving pre-deposit and stay. The Tribunal granted stay on the condition that the appellant deposits the entire amount of service tax with interest and 50% of the penalty levied. Subsequently, the appellant filed an application for modification of the order which was rejected by the Tribunal. The appellant contended that the case was decided in their favor by a previous Tribunal order, but the court decided that the matter needed re-consideration regardless of the previous decision. The court noted that the orders were passed without hearing the appellant and without appreciating the merits presented by the appellant. Due to the absence of the counsel during the Tribunal hearing and the significant monetary liability imposed on the appellant, the court set aside the orders and remitted the matter back to the Tribunal for fresh consideration.

The court emphasized that the orders were passed without considering the merits presented by the appellant and were influenced by the limits of jurisdiction in the application for review. Therefore, the court set aside the orders and remitted the matter back to the Tribunal for a fresh hearing. The court highlighted the absence of the appellant's counsel during the Tribunal hearing as a crucial factor in the decision to remit the matter back for reconsideration. The court acknowledged the substantial financial burden placed on the appellant and deemed it necessary for the Tribunal to hear the appeal and application afresh to ensure a fair decision. The judgment concluded by disposing of the case accordingly and directing the Tribunal to hear the appeal and application together before passing fresh orders.