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2014 (4) TMI 951 - HC - Central ExciseRecall of order - Non consideration of full arguments - Held that - Quite apart from the grievance of the appellant that an important ground/contention raised in written submission was not considered, we notice that the appellant had not remained present before the Tribunal but had merely sent a request letter to decide the appeal on merits after considering the synopsis and compilation already filed. To avoid further complications the counsel for the appellant stated that if the appeal is remanded before the Tribunal for fresh consideration, the appellant would appear in person or through his authorized representative and canvas all available arguments before the Tribunal. - Matter remanded back for fresh consideration - Decided in favour of assessee.
Issues:
1. Challenge to the Customs, Excise and Service Tax Appellate Tribunal's orders dated February 15, 2013, and March 15, 2013. 2. Non-inclusion of certain amounts in the computation of service tax liability. 3. Appellant's firm classification as a proprietorship firm and not a Security Agency. 4. Tribunal's focus on penalty issue rather than the raised contentions. 5. Request for a fresh hearing of the appeal. Issue 1: Challenge to Tribunal's Orders The appellant challenged the orders of the Customs, Excise and Service Tax Appellate Tribunal dated February 15, 2013, and March 15, 2013. The appellant was absent during the Tribunal's proceedings but had submitted a request for the appeal to be decided on merits based on the synopsis and compilation previously filed. The appellant raised a crucial ground regarding the exclusion of certain amounts in the service tax calculation. However, the Tribunal did not address this issue and focused solely on the penalty matter. The High Court issued a notice for final disposal, setting the stage for a fresh consideration of the appeal. Issue 2: Non-Inclusion of Amounts in Service Tax Calculation The appellant contended that certain expenses, such as staff salary and infrastructural costs, should be excluded from the gross amount received for Security Service, affecting the service tax liability. Citing previous judgments, the appellant argued for a lower tax calculation based on the exclusion of these expenses. The High Court acknowledged this contention and directed a fresh hearing to consider the appellant's arguments fully. Issue 3: Firm Classification The appellant's firm, being a proprietorship firm, was disputed as not meeting the criteria to be classified as a Security Agency under specific sections. The appellant provided references to circulars and judgments supporting this claim. The High Court did not express an opinion on the merits of this contention but emphasized the need for the appellant to appear before the Tribunal for the fresh hearing. Issue 4: Tribunal's Focus on Penalty The Tribunal's decision to address only the penalty issue, neglecting the crucial contentions raised by the appellant, was highlighted. The High Court overturned the Tribunal's order refusing to recall its original decision and directed a fresh hearing on the appeal to consider all aspects, including the appellant's arguments on the non-inclusion of expenses in the service tax calculation. Issue 5: Request for Fresh Hearing In response to the appellant's request for a fresh hearing, the High Court set aside the Tribunal's order and directed a reevaluation of the appeal on its merits. The appellant was instructed to participate in the proceedings either in person or through an authorized representative. The High Court refrained from expressing any opinion on the arguments presented, leaving the decision to be made during the fresh consideration of the appeal.
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