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2014 (4) TMI 1165

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..... t of justice, the Appellant should be given a fair opportunity to place all the evidences before the adjudicating authority - appeal allowed by way of remand. - ST/562/2011 - A/75143/KOL/2014 - Dated:- 10-4-2014 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri A. Sengupta assisted by S.K. Baid, Advocates, for the Appellant. Shri S. Chakraborty, Asstt. Commr. (AR) for the Respondent. ORDER [Order per : D.M. Misra, Member (J)] . - Vide Order No. SO/71401/2013, dated 20-11-2013, while disposing of their Stay Application, the Applicant were directed to deposit 50% of the Service Tax and report compliance by 21-1-2014. Aggrieved by the said Order, the Applicant preferred a Writ Petition before the Hon ble Hig .....

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..... issioner, at the time of adjudication of the impugned notice. The ld. Advocate further submits that subsequent to the hearing of Stay Application by this Tribunal on 20-11-2013, they had procured another Chartered Accountant s Certificate and by which, it could be established the extent of non-taxable services and other receipts for the period prior to 1-6-2007 and thereafter. It is his submission that these documents would also show that the services rendered by them after 1-6-2007, fell under the scope of Mining Services and not under Business Auxiliary Services , as erroneously concluded by the ld. Adjudicating Authority in the Order. He also submits that the pre-deposit of the amount directed by this Tribunal on 20-11-2013, would cau .....

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..... sis of the evidences available on record, had formed a prima facie opinion on merit and directed the Appellant to make the pre-deposit, accordingly. We acknowledge the apprehension expressed by the ld. AR for the Revenue that at this stage, the additional evidences which were not placed before the ld. Adjudicating Commissioner, cannot be considered as reliable evidences, since they have no bearing on the conclusion arrived at by the ld. Commissioner. He also submits that in spite of ample opportunities given to the Appellant earlier, they could not produce the evidences before the ld. Commissioner, which now they have filed before this Tribunal for the first time; therefore, the ld. Commissioner had no occasion in examining these evidences, .....

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