2018 (6) TMI 81 - AT - Service Tax

Maintainability of appeal - demand of service tax - appeal challenged on the ground that against the said Order-in-Original the appellant had already filed appeal before the Commissioner (Appeals) - Held that - Since the appellant is raising the preliminary objection about the maintainability of appeal before the Commissioner (Appeals) therefore it is appropriate and also in the interest of justice, to remand the matter back to the Commissioner (Appeals) to decide the matter afresh, after hearing the appellant on the question of maintainability of Appeal - appeal allowed.

Summary

Issues:
- Appeal against Order-in-Appeal remanding the matter for fresh adjudication.
- Demand of Service Tax and penalties under various sections.
- Preliminary objection on the maintainability of appeal before Commissioner (Appeals).
- Violation of Principle of natural justice and lack of hearing notice.

Analysis:
The appeal in question was filed against an Order-in-Appeal that remanded the matter back to the adjudicating authority for fresh adjudication. The Show Cause Notice issued to the appellant raised several issues, including the recovery of Service Tax, imposition of penalties under different sections of the Act, and recovery of interest. The joint Commissioner, in the Order-in-Original, dropped a portion of the Service Tax demand while confirming another portion. The appellant raised a preliminary objection during the hearing, arguing that the appeal filed by the department before the Commissioner (Appeals) was not maintainable as the appellant had already filed an appeal against the original order, which was partly allowed in their favor. The appellant claimed a violation of the Principle of natural justice, stating that no hearing notice was given before the Commissioner (Appeals).

During the proceedings, the appellant's advocate contended that the appeal filed by the department was not maintainable as the appellant had already filed an appeal against the original order, which was partly allowed. The respondent's representative argued that the appellant did not appear before the Commissioner (Appeals) despite several notices being served. Ultimately, the Tribunal decided to set aside the impugned order and allowed the appeal, emphasizing the importance of hearing the appellant on the question of the appeal's maintainability before the Commissioner (Appeals). The matter was remanded back to the Commissioner (Appeals) for a fresh decision in the interest of justice, considering the preliminary objection raised by the appellant regarding the appeal's maintainability.