2018 (6) TMI 1254 - AT - Service Tax

Rectification of Mistake Application - As the appellant had not been provided upon documents by the court below, no reply to the show cause could be filed. The Original Authority have passed practically ex parte order in clear violation of principles of natural Justice. Thus they were not given proper opportunity for hearing and for explaining the case - Held that - In the impugned order-in-original, which are been passed ex parte, the learned Commissioner did not provide the relied upon documents and further without providing adequate opportunity of hearing have passed the impugned order-in-original in hot haste, thus violating the principles of natural Justice - Accordingly, we recall the Final Order dated 1.11.2017 and allow this miscellaneous application for rectification of mistake - ROM application allowed.

Summary

Issues involved:
Rectification of mistake in Final Order for violation of principles of natural justice.

Analysis:
The appellant filed an application for rectification of mistake in the Final Order on the grounds that the impugned order was vitiated for violation of principles of natural justice. The appellant claimed that relevant documents were not made available, thus hindering their ability to respond to the show cause notice adequately. It was argued that the Original Authority passed an ex parte order without providing a proper opportunity for a hearing or explaining the case, violating principles of natural justice.

The appellant relied on a judgment of the Rajasthan High Court in a similar case, emphasizing the importance of providing authenticated copies of relied-upon documents for a fair process. The Tribunal, however, did not find this ground tenable, stating that the appellant had appeared for a personal hearing and had the opportunity to file a written statement but failed to do so. The Tribunal dismissed the appellant's claim that they could not respond due to the unavailability of relied-upon documents, considering it an afterthought without supporting evidence.

The appellant's counsel highlighted that after the personal hearing, no further date was fixed for hearing, and the relied-upon documents were not provided before the impugned ex parte order was passed. The Tribunal was urged to consider the mistake in appreciating the facts and to recall the Final Order dated 01/01/2017 based on the jurisdictional High Court's ruling.

The Revenue supported the Final Order, arguing that all issues, including the violation of principles of natural justice, were adequately considered. The Revenue contended that the appellant had the necessary details available, attended the personal hearing, and was given sufficient time to file a written statement, which they failed to do. The Revenue opposed the appellant's request for further elaboration on the issue, suggesting that any grievances should be addressed through higher judicial forums.

After considering the submissions and facts on record, the Tribunal found that the impugned order-in-original was passed ex parte without providing relied-upon documents and adequate hearing, thus violating principles of natural justice. The Tribunal recalled the Final Order and allowed the miscellaneous application for rectification of mistake. The impugned order was set aside, and the appeal was remanded to the Adjudicating Authority with directions to provide the relied-upon documents, consider the appellant's reply, and pass a reasoned order in accordance with the law. The appellant was instructed to appear before the Adjudicating Authority within 60 days from the date of receipt of the order.