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TMI Blog2014 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that in Appeal No. 711/2012 the impugned order stand passed by the Commissioner in de novo proceedings, when the matter was remanded by the Tribunal vide its Final Order No. 267/2009, dated 30-10-2009. 2. The learned Advocate appearing for the appellants submits that the said order of the Tribunal remanding the matter was put to challenge before the Hon ble Supreme Court who vide their order dated 19-2-2010, issued notice to the respondents and thereafter the appeal was admitted on 8-7-2010, as per the statement made by the learned Advocate. 3. It is seen from the order of the Hon ble Supreme Court that their contention that even if the department s allegation of running a commercial and industrial construction services and erection and commissioning services are accepted, still there would be no demand liable to be paid by the appellants. 4. Learned Advocate submits that the above development was brought to the notice of the Commissioner and a request was made to keep the proceedings in abeyance till the decision of Hon ble Supreme Court comes but the learned adjudicating authority has passed the impugned order, without considering their request and without affordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deciding my order after going through the file in a more detailed manner. This order is being recorded in pursuance of such fact pronounced in the Court. 9. I have heard the arguments during the hearing, perused the case records and also considered the order recorded by Member (Judicial). Though I am in agreement with the order of Member (Judicial) that the matter has to be remitted for de novo consideration. I am not in agreement with the direction of Member (Judicial) that the matter should be kept pending by the adjudicating officer till the appeal filed by the appellant against the previous order of the Tribunal, directing fresh adjudication, is decided by the Hon ble Apex Court. I am recording this separate order for that reason. Firstly I propose to state the reasons why I agree that this matter has to be remitted back to the adjudicating authority. Then I propose to record the reason why I disagree with the order that the matter should be kept pending. 10. The facts of the case are that the appellant was providing different services to steel plants. According to them the services were divisible in the following categories : (a) Commercial or Industrial Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation against service tax liability in respect of such distinct service provided as per page 4 of the appeal memo? (3) Whether there is any allocation register maintained to allocate the input credit to the respective service provided? (4) Whether substance of page 74-75 of the appeal folder (Annexure J to show cause notice) gives rise to input credit of ₹ 6,02,867/- as appearing in Col. 5 at page 18 of the appeal folder and whether that was appropriated against tax liability relating to Consulting Engineer Service? (5) Whether any input credit has been claimed against Industrial and Construction services? Extracts from Final Order dated 30-10-2009 5. On careful consideration of the submissions from both sides and on perusal of the records including the verification report submitted in pursuance of the order dated 17-8-2009, we find that several submissions made by the appellants in the reply to the notice have not been considered in proper perspective. The crucial question is whether the appellants have rendered separate services of Consulting Engineer Service and the same has not been dealt. The submissions contained in the report of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give the benefit of doubt and give another opportunity to the appellant to make submissions and be heard. There are critical issues of facts to be examined and once decision is taken without hearing the party there is likelihood of erroneous conclusion. I am of the view that in this case there was need to give a longer rope of natural justice to the appellant till it became explicit that they were just not willing to make any submission. So I am agreeing with the order for remanding the case for another round of adjudication and I agree with that part of the order recorded by Member (J). 17. Now I come to the reasons why I am not agreeing with the order to keep the matter in abeyance till the Apex Court decides the appeal before it. In the first place the order recorded by Member (Judicial), in substance amounts to temporarily stopping the proper implementation of the order of the Tribunal dated 31-10-2009 which could not be carried out properly due to non-cooperation of the appellants. When the appellants filed appeal before Apex Court, it was open to the appellants to request the Apex Court to stay the order of the Tribunal. The appellants did not either pray for stay or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e difference in opinion between Member (J) and me that has arisen does not involve any question of fact or law but only advice regarding future course of action and hence the order can be issued for the agreed part of the order without reference to a third Member. Sd/- (Mathew John) Member (Technical) 19. POINTS OF DIFFERENCE In the facts and circumstances of the case whether it is legal and proper,- to give a direction to the adjudicating authority that the matter should be kept pending till the Apex Court decides the appeal filed before it as directed by Member (Judicial). OR to give a direction to the appellant to take all pleadings along with supporting evidence before the adjudicating authority directing him to decide the issues afresh as per the remand order already passed by the Tribunal as opined by Member (Technical). (Pronounced in Court on 14-6-2012) Sd/- (Mathew John) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 20. The Registry may place the matter before the President, CESTAT for deciding whether the order can be issued only for the agreed part of the order or the point of difference need to be resolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whether the contracts were divisible, if divisible whether abatement and Cenvat credit in respect of inputs, capital goods and input services used for providing consulting engineers services available and whether the appellant maintained accounts to show credit taken separately for the impugned services. He recorded the observations of Tribunal in para 16 of his order and opined that the appellant should have a fair opportunity to place its facts with evidence for thread bare examination in re-adjudication upon remand suggested by both Members. 25. It may be stated that there is no stay of operation of the order dated 30th October, 2009 passed by the Tribunal by Apex Court in Civil Appeal No. 1418 of 2010 which is agreed by ld. Counsel for the appellant on the date of hearing. 26. The reference is thus answered that the matter may go back to ld. Commissioner who shall grant fair opportunity of hearing to the appellant for pleading on fact, evidence and law for passing a reasoned and speaking order dealing entire pleading that may be made by the appellant. While passing the order if order of Apex Court comes up, ld. Commissioner shall have advantage of following that order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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