2009 (5) TMI 154 - AT - Service Tax

Violation of natural justice - Commissioner passed the order one day before the date for filing of reply as requested by the appellant - submits that the appellant was recipient of GTA service. The recipient of GTA service is entitled to the Cenvat credit under Cenvat Credit Rules, 2004 against the tax liability discharged. He has all proof. He prayed the ld. Commissioner to allow time up to 23-11-08 to lead defence. But that Authority without allowing to lead defence on 23-11-08 passed the order of adjudication one day before that date. The order so passed was sewed on 22-1-09. - we are of the view that the authority which has huridly proceeded to decide the matter without waiting for next day, shall have opportunity to go through pleadings of the appellant and examine its evidence thoroughly matter remanded to adjudicating authority for fresh decision and to pass a reasoned and speaking order.

Summary

Issues: Violation of natural justice in passing an order without allowing time for the appellant to lead defense, entitlement to Cenvat credit for GTA service, remedy for the violation of natural justice, direction for further proceedings before the adjudicating authority.

In this case, the appellant, a recipient of GTA service, appealed against an order of adjudication passed by the authority without allowing time to lead defense. The appellant argued for the entitlement to Cenvat credit under the Cenvat Credit Rules, 2004, supported by evidence. The appellant requested time to present a defense, but the order was passed before the scheduled date. The Tribunal noted the violation of natural justice and emphasized that such a defect is not curable at the appellate stage. The Tribunal directed the authority to thoroughly examine the appellant's evidence and provide an opportunity for the appellant to lead the same, ensuring justice is served.

The Departmental Representative (DR) contended that since the appellant did not qualify for the CENVAT benefit, the adjudication was appropriate based on the available material. However, the Tribunal highlighted the importance of examining the appellant's entitlement to Cenvat credit as a recipient of GTA service under the law. The Tribunal stressed the need for a detailed examination of this aspect to ensure justice is not denied.

The Tribunal acknowledged that the violation of natural justice cannot be rectified at the appellate stage and emphasized the authority's responsibility to review the appellant's evidence thoroughly. The Tribunal directed the appellant to appear before the adjudicating authority, file necessary applications, and participate in the proceedings. It was made clear that failure to appear on the scheduled hearing date would not grant the appellant further opportunities for a hearing unless essential. The Tribunal dismissed both appeals but directed the appellant to return to the adjudicating authority to address the charges in the show cause notice, ensuring a fair and reasoned process.

Overall, the judgment focused on addressing the violation of natural justice, examining the appellant's entitlement to Cenvat credit, and ensuring a fair opportunity for the appellant to present evidence before the adjudicating authority. The Tribunal emphasized the importance of due process and thorough examination of legal entitlements to uphold justice in the proceedings.