2015 (10) TMI 976 - AT - Service Tax

Waiver of pre deposit - Held that - adjudicating authority in para 6 as recorded that the appellant had appeared for personal hearing before him on 28.05.2012 and sought an adjournment as also two months time for filing reply. Despite such a specific request from the appellant made before him, the adjudicating authority passed an order without waiting for the reply from the appellant. We notice that the adjudicating authority has passed an order on 28.10.2013. In our view, he could have waited for the reply or reminded appellant to file reply. He has recorded that the noticee has been given three opportunities of personal hearing; on this point also we find that appellant seems to have appeared before the lower authority on 28.05.2012 while the opportunities which were granted to them seem to be on 24.05.2012, 08.08.2012 and 23.08.2012. In our view, the impugned order has not considered the request of the appellant in its proper perspective and has been passed without considering an effective reply. However, we also find that the appellant has been non-co-operative with the adjudicating authority, in as much despite giving an undertaking that they will file reply within two months they have not done so. - Partial stay granted.

Summary

Issues: Stay petition for waiver of pre-deposit; Effective personal hearing; Non-cooperation with adjudicating authority; Compliance with conditions for remand.

The judgment pertains to a stay petition filed for the waiver of pre-deposit of an amount confirmed as service tax liability, interest, and penalties imposed by the adjudicating authority. The appellant's main grievance was the lack of effective personal hearing by the adjudicating authority despite specific requests. The appellant also claimed that benefits of various notifications applicable to the services rendered were not extended to them. The Tribunal found merit in these contentions and decided to dispense with the condition of pre-deposit, proceeding to take up the appeal for disposal.

Upon review, the Tribunal noted that the adjudicating authority had not considered the appellant's requests properly. Despite the appellant appearing for a personal hearing and seeking an adjournment for filing a reply, the authority passed an order without waiting for the response. The Tribunal observed discrepancies in the dates of personal hearings granted and the actual appearance of the appellant. While acknowledging the appellant's non-cooperation in filing the reply within the stipulated time, the Tribunal directed the appellant to deposit an additional amount within four weeks and file a detailed reply within the same period. The adjudicating authority was instructed to consider the compliance of the deposit before adjudicating the matter further.

The Tribunal emphasized that failure to comply with the filing of the reply and deposit conditions would allow the adjudicating authority to proceed with the case. However, if the conditions were met, the authority was required to follow the principles of natural justice before reaching a conclusion. Ultimately, the appeal was disposed of by way of remand, with the appellant directed to fulfill the specified conditions for further proceedings.