9911796707
TMI Blog2014 (2) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant statutory provisions and of precedents referred, followed by a synthesis of the culled out legal facts and the applicable provisions of law and the principles culled out from the precedents. Only thereupon must an adjudication record conclusions. Failure to adhere to the minimal standards of adjudicatory discipline is a compelling inference where an adjudication authority fails to record all relevant contentions, the statutory provisions and the authorities cited; fails to analyse the facts and the law; and fails to record conclusions after following the rigour of the preceding process. The order impugned herein is in this sense a non-speaking order bereft of relevant analysis and is therefore perverse. The respondent/adjudication authority shall record independent conclusions while disposing of the proceedings afresh. The consequence of this casual adjudicatory approach has not only burdened the assessee with avoidable litigation but had also added to the docket load of this Tribunal. We therefore allow the appeal as above with costs of ₹ 10,000/- payable to the appellant/ assessee within two weeks from the date of receipt of a copy of this order. - Decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant company is a registrant under the Act, for providing the taxable Business Auxiliary Service (BAS); Management, Maintenance or Repair Service (MMR)l and Erection Commissioning or Installation Service (ECIS). Pursuant to audit of the assessee during 2009, covering the period 2006 to 2009, Revenue inferred that the appellant was providing BAS to its associated enterprises, namely, M/s Satake Corporation, Japan (SCJ) [the holding company] and M/s Satake International Bangkok Co. Ltd. (SIBCOL), a fellow subsidiary. Audit revealed that the appellant had remitted service tax under the taxable BAS till September 2008 but had discontinued remittance of service tax thereafter though it continued to provide the same service to its associated enterprises A show cause notice dated 19.4.2013 was therefore issued proposing levy of service tax for the period October 2008 to March 2009 for having provided BAS and MMR. 5. Under the second show cause notice dated 19.10.2010, apart from having provided the taxable BAS (during April 2009 to March 2010), the appellant is stated to have provided warranty support service along with components supplied by its associated enterprises, to customers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r services rendered within India, no service tax was payable for MMR services rendered outside the Indian territory and therefore no tax was paid on the latter component. The appellant also stated that Revenue had earlier accepted its contention regarding non-leviability of service tax on MMR service provided outside the India, while issuing an earlier show cause notice dated 19.04.2010 which was issued after audit of the appellant s record; and that no reasons are set out now, for the demand of service tax for MMR service provided outside India. The appellant further stated that it received convertible foreign exchange in respect of MMR services rendered outside India and in the circumstances there was no liability to service tax. The appellant s claim of immunity to levy of service tax in respect of MMR service provided outside India, based on provisions of the Export of Services Rules, 2005 is reiterated and decisions in support of its contention in this behalf were set out in the response to the show cause notice. 8. After submitting its reply dated 24.11.2010 to the second show cause notice, the appellant filed a memorandum of written submission on 09.07.2013. Paragraph 4 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of the Tribunal in Paul Merchants Ltd. While the counsel for the appellant contends that this omission is by design; the ld. A.R. for Revenue would contend that the omission is a default and unintentional. In any event this omission is fatal; and at least amounts to casual adjudication. 12. In its written reply dated 17.06.2010, filed in response to the show cause notice dated 19.04.2010; the appellant referred to relevant provisions of the 2005 rules as existed during the relevant period; that since services were provided outside India these are covered by the provisions of the 2005 rules; that the show cause notice had relied on the Board Circular dated 19.04.2006; that this circular is not relevant since the disputed period is October 2008 to March 2009, earlier to the circular and provisions of the 2005 rules were also different and were amended w.e.f. 01.03.2007; referred to six decisions of this Tribunal, the Delhi to several others decisions to support its claim that invocation of the extended period of limitation is unjustified in the circumstances. Appellant also relied on several other decisions to contest the proposal for imposition of penalty. 13. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such decisions outweight any contrary clarification or exposition of the law, contained in a Board Circular. It is perhaps legitimate to infer that the learned authority was conscious of this principle and had therefore referred only to the Board Circular while conveniently omitting a reference to the decision of the full Bench in Paul Merchants Limited. 17. An adjudicating authority, even where one is a departmental officer but is performing a judicial function, must bring to his function the minimum standards of fairness, neutrality and professionalism, in the discharge of functions. A judicial function requires a neutral appreciation of facts; due and conscious reference to the material on record; carefully and precise statement of the competing contentions and precedents if any relied upon by either party; analysis of facts; of the relevant statutory provisions and of precedents referred, followed by a synthesis of the culled out legal facts and the applicable provisions of law and the principles culled out from the precedents. Only thereupon must an adjudication record conclusions. An adjudicating authority must be conscious of the fact that the process of assessment is ess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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