2017 (9) TMI 626 - AT - Service Tax

Natural Justice - ex-parte order - Held that - Examination of the credit requires testing of material facts and evidence and admissibility thereof requires examination of legal provision for application to the tested facts and evidence. Therefore, re-adjudication is considered to be proper recourse to do justice to both sides recording the pleadings of the parties, allegation in the SCN, evidence adduced and the law applicable for passing a reasoned and speaking order - the matter is remanded to the learned adjudicating authority who shall re-adjudicate the matter - appeal allowed by way of remand.

Summary

Issues:
1. Recall of ex-parte order due to non-appearance of advocate.
2. Permissibility of credit taken by respondent.
3. Remand of appeal for re-adjudication.

Analysis:
1. The judgment pertains to the recall of an ex-parte order due to the non-appearance of the advocate on record. The learned counsel for the respondent requested the recall of the order passed ex-parte on a specific date as the advocate was occupied in another court and couldn't reach on time. The Tribunal, considering the request and following the precedent set by the apex court, decided to recall the order and proceed with the appeal on its merits.

2. The issue of the permissibility of the credit taken by the respondent was examined in detail. The Revenue contended that the credit taken by the respondent was not permissible, leading to prejudice against the Revenue's interest. The adjudicating authority had concluded that the credit was wrongfully availed, causing prejudice. However, the respondent argued that the reversal of credit was done upon realizing the legal deviation without any contrary finding by the authority. The Tribunal emphasized the need for a thorough examination of facts, evidence, and legal provisions for a reasoned decision. Consequently, the matter was remanded for re-adjudication to ensure justice to both parties.

3. The final issue addressed in the judgment was the remand of the appeal for re-adjudication. The Tribunal highlighted the importance of re-examining the case to consider all aspects, including pleadings, evidence, and applicable laws, before passing a speaking order. The Tribunal upheld the decision for remand, directing the adjudicating authority to re-adjudicate the matter by a specified date, ensuring due process of justice. The Tribunal concluded the judgment by disposing of the matter with the given observations and directions, emphasizing the need for a reasoned and speaking order in the re-adjudication process.