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TMI Blog2014 (4) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional of the proceedings. The rejection of this contention by the Appellate authority is therefore fatal to the Appellate order which therefore invites invalidation on this singular ground. While the appellant company was remiss in not pleading the exact nature of the transaction and in furnishing evidence that it was neither the landlord nor the provider of the taxable service but was only the recipient, the fact remains that in the present case as in many such cases, adjudicating authorities are seen to be avoiding the fundamental adjudicatory discipline, namely in requisitioning the relevant transactional documents to identify the nature of the transaction. Such negligence is compounded, in the facts and circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.1,77,984/- apart from interest under Section 75 and penalties under Sections 76, 77 and 78 of the Finance Act, 1994. It requires to be noticed that in response to the show cause notice the assessee merely denied the liability to tax on the ground that levy of service tax on renting of immovable property is constitutionally impermissible in view of the 2009 judgment of the Division Bench of the Delhi High Court in Home Solution Retail India Ltd. vs. UOI. In response to the show cause notice, the petitioner failed to assert that it was not the provider but was only the recipient of renting of immovable property service nor that the joint property of its Directors was leased in favour of the assessee; or that it was remitting rents to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice or during course of the adjudication proceedings. The Appellate authority merely referred to Rule 5 of Central Excise (Appeals) Rules, 2001 which disentitles an appellant to produce before Appellate authority evidence not produced before the adjudicating authority, unless the adjudicating authority had refused to admit any defence evidence which was admissible or the appellant was prevented by sufficient causes from producing such evidence before the adjudicating authority or for like circumstances. This rule has no application to the facts and circumstances of the case. A contention that the assessee commpany was not the provider but was the recipient of renting immovable property service is not a piece of evidence, it is a pleading, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant who is a party to each of the agreements. N.D. Ahuja and Yogesh Ahuja are referred to as the landlord and the tenant alternatively in the two agreements. Towards the end of the respective agreements, the tenant signatory is however described as having subscribed the signature for or on behalf of the assessee M/s Astron Polymers Pvt. Ltd. Be that as it may. In any event, the copies of these agreements do not reveal the appellant company be the landlord and to have executed the tenancy agreement in favour of others. Therefore, if at all, the appellant is the recipient but not the provider of the taxable service. 8. While the appellant company was remiss in not pleading the exact nature of the transaction and in furnishing evidence th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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