2017 (9) TMI 627 - AT - Service Tax

Cargo Handling Service - appellant argued that Order-in-Original was passed without benefit of reply of the appellant and without personal hearing - natural justice - Held that - it has not been denied that appellant were given sufficient opportunity to file defense reply and to appear for personal hearing. They could not cause a defense reply to be filed or personal hearing to be attended - there is apparent error in the impugned order in so far as it imposes penalty under Section 78 in respect of all show cause notice whereas the said provision was not invoked in atleast two of them. It is apparent that on account of the conduct of the consultant they have failed to put up a proper representation and defense. It is reasonable to remand the matter to the Original Adjudicating authority for a fresh adjudication after considering all the defense of the appellant - appeal allowed by way of remand.

Issues:
Confirmation of demand under Cargo Handling Service, inclusion of fresh ground for consideration, failure to file reply and attend personal hearing, introduction of additional evidence through Misc. Application, objection to C.A. certificate as evidence, admission of liability, challenge to calculation, introduction of new facts at Tribunal stage, sufficiency of opportunities for defense reply and personal hearing.

Confirmation of demand under Cargo Handling Service:
The appeal was filed against the confirmation of demand under Cargo Handling Service. The appellant argued that the Order-in-Original was passed without their reply and personal hearing due to the fault of their consultant. The appellant sought to challenge the impugned show cause notice, claiming that errors were present in the order, including penalties imposed under Section 78 for all show cause notices when it was not invoked in some cases. The Tribunal noted that the appellant had paid a significant amount out of the total demand. Due to the consultant's misconduct, the appellant failed to provide a proper defense. Consequently, the Tribunal remanded the matter to the Original Adjudicating authority for a fresh adjudication after considering all the defense of the appellant.

Inclusion of fresh ground for consideration:
The appellant filed a Misc. Application seeking to include a fresh ground for consideration, which was not included due to the consultant's failure to file a reply and attend the personal hearing. The Tribunal allowed the inclusion of the fresh ground by remanding the matter for a fresh adjudication.

Introduction of additional evidence through Misc. Application:
The appellant sought to introduce an undated certificate of a Chartered Accountant as evidence through the Misc. Application. The respondent strongly objected to this, arguing that the appellant had admitted liability earlier and could not challenge the calculation at this stage. The Tribunal considered the objection and decided to remand the matter for a fresh adjudication, disposing of the Misc. Application.

Sufficiency of opportunities for defense reply and personal hearing:
The respondent argued that the appellant had been given sufficient opportunities for defense reply and personal hearing, but the appellant failed to take advantage of these opportunities due to the consultant's misconduct. The Tribunal found that the consultant's actions had hindered the appellant's ability to present a proper defense and, therefore, remanded the matter for a fresh adjudication to ensure justice was served.

Introduction of new facts at Tribunal stage:
The respondent objected to the introduction of new facts and evidence at the Tribunal stage, arguing that the appellant had multiple opportunities for personal hearing before the order was issued. The Tribunal considered the arguments and decided to remand the matter for a fresh adjudication, emphasizing the importance of following due process and allowing the appellant to present a proper defense.

Objection to C.A. certificate as evidence:
The respondent strongly objected to the introduction of the C.A. certificate as evidence, arguing that it was an attempt to introduce new facts at a later stage after the matter had been argued. The Tribunal considered the objection and decided to remand the matter for a fresh adjudication, ensuring that all evidence and arguments were considered appropriately.

Admission of liability and challenge to calculation:
The respondent pointed out that the appellant had admitted liability earlier, and challenging the calculation at a later stage was not permissible. The Tribunal acknowledged this argument but decided to remand the matter for a fresh adjudication to address all aspects of the case comprehensively.

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