2010 (2) TMI 136 - AT - Service Tax

Business Auxiliary Service - Demand of service tax and penalties - though the assessee had filed a reply to the show-cause notice, the same was not considered by the adjudicating authority. The reply was filed on 18.4.07 and the same was duly acknowledged by the Divisional Office of Central Excise, Nagpur. However, the adjudicating authority observed, in its order, that the noticee did not file reply to the show-cause notice and further that they were not interested in filing reply to the show-cause notice and availing chances of personal hearing. That authority proceeded to decide the case on the basis of available records. Held that the reply filed by the party was acknowledged by an officer of Central Excise in the Divisional Office of Central Excise at Nagpur, as evident from the relevant endorsement on the facing page of the reply filed by the party. I am at a loss to understand as to how both the lower authorities failed to take into account the reply filed by the party, which must be a part of the departmental file. If that document is missing, the original authority can require the assessee to supply another copy of their reply to the show-cause notice. Matter remanded for fresh decision.

Issues involved:
Adjudication of service tax demand, imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994, consideration of reply to show-cause notice, demand of service tax on 'Business auxiliary Services' and 'Cargo Handling Service' for periods prior to their taxable dates, denial of natural justice by not considering the reply, appeal against dropping of penalties, remand to original authority for further adjudication.

Analysis:

1. The original authority demanded service tax, education cess, and interest from the assessee, along with penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The Commissioner (Appeals) vacated the penalties but upheld the rest of the Order-in-Original. The department appealed against the dropping of penalties, while the assessee challenged the demand of service tax.

2. The Tribunal noted that the reply filed by the assessee to the show-cause notice was not considered by the adjudicating authority, despite being acknowledged by the Divisional Office of Central Excise. The authority proceeded to decide the case based on available records, ignoring the reply. The Tribunal observed that natural justice was denied to the party by not considering their response.

3. The counsel for the assessee argued that the demand of service tax on 'Business auxiliary Services' and 'Cargo Handling Service' for periods before their taxable dates should be set aside. Although this plea was not explicitly raised in the initial reply, it was brought up before the appellate authority and considered. The Tribunal acknowledged that the plea could have been specifically raised in a supplementary reply to the show-cause notice.

4. Considering the denial of natural justice in not considering the assessee's reply, the Tribunal set aside the lower authorities' orders and allowed the appeal by remanding the case to the original authority for further adjudication.

5. The department's appeal against the dropping of penalties was also allowed by way of remand. The lower appellate authority had set aside the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994, which the department contested on various grounds.

6. The Tribunal directed the original authority to provide the assessee with a reasonable opportunity to file a supplementary reply to the show-cause notice and to be heard. It emphasized the importance of issuing a speaking order on all issues during the adjudication process.

In conclusion, the Tribunal's judgment focused on the denial of natural justice in not considering the assessee's reply, leading to a remand for further adjudication. The appeal against the dropping of penalties was also allowed, emphasizing the need for a fair and thorough adjudication process.

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