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TMI Blog2015 (10) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... ion - Appeal dismissed being devoid of merits against the Revenue. - C.E.A. No.46 of 2015 - - - Dated:- 16-6-2015 - SRI G.CHANDRAIAH AND SRI CHALLA KODANDA RAM, JJ For the Respondent: Sri Laxmi Kumar and Sridharan JUDGMENT:- Per Sri Challa Kodanda Ram This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 as substituted by the Finance Act, 2003 (for brevity the Act) is filed at the instance of the Department against the Final Order No. 558 / 2007, dated 08.05.2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short CESTAT) by raising the following questions of law for adjudication. i) Whether the Honourable CESTAT is justified in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ignoring the decision of the CESTAT, New Delhi in the case of M/s.Cenlub Industries Ltd. vs. Commissioner of Customs reported in 2001 (132) ELT 206 (Trib) wherein the Tribunal held that the plea of non-issuance of show cause notice has no force since the applicant was afforded an opportunity of personal hearing before the case is decided and thus principles of natural justice were fully complied with, more so when respondent has not raised the issue before original adjudicating authority and appellate authority? The respondent is a partnership firm consisting of a Diploma holder, a Graduate in Arts and one Mechanical Engineer. The respondent approached the Department seeking for issuance of Form ST-1 for registration in the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise has reason to believe that by reason of omission or failure on the part of the assessee, to make a return under Section 70 for any prescribed period or to disclose wholly or truly all material facts required for verification of the assessment under Section 71, the value of taxable service has escaped assessment or has been under assessed or service tax has not been paid or has been short paid or any sum has erroneously been refunded, or b) not withstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise has in consequence of information in his possession, rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, submits that the respondent had submitted a detailed explanation and it was considered and rejected quantifying the amount payable by the respondent, as such, there is a substantial compliance on the part of the department and the non-issuance of show cause notice is only a technical breach on their part. On the other hand, the learned counsel for the respondent submits that there is a categorical finding of the Tribunal that there was fundamental breach of compliance of the statutory provision which is the basic requirement to initiate the very proceedings under the statutory provisions of Service Tax and the Rules and procedural Regulations made therein, as such, the order of the Tribunal is unassailable and does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be registered as technocrats for the services of scientific or technical consultancy. The said letter is more in the nature of providing advice to the appellant. The procedural requirement of issuance of notice and calling for explanation cannot be dispensed with as otherwise the demand of money in the name of tax is in violation of the very procedure prescribed under the Act, thus violating the safeguard provided under Article 265 of the Constitution of India. In the circumstances, we see no reason to entertain this appeal. We also find that the order of the Tribunal is dated 08.05.2007 and the appeal itself came to be filed in the year 2012 and it was numbered in the year 2015, hence, we do not find any justification at this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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