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TMI Blog2018 (12) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Appellant to record her submissions on the point and therefore the order cannot be sustained. The matter remitted to the ld. Adjudicating Authority to decide afresh - appeal allowed by way of remand. - Appeal No.ST/76820/2016 - FO/A/76615/2018 - Dated:- 22-5-2018 - Shri P.K. Choudhary, Member (Judicial) Shri N.K. Dash, Advocate for the Appellant (s) Shri K. Chowdhury, Suptd.(AR) for the Respondent (s) ORDER Per Shri P.K. Choudhary This is second round of litigation before the Tribunal. Briefly stated the facts of the case are that the show cause notice dated 22.04.2010 was issued as under: To M/s. Universal Travels At Plot No.N-6/287, IRC Village Nayapalli Bhubaneswar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Hon ble Orissa High Court on 07.03.2013. The appeal was taken up for final hearing by the Ld. Commissioner (Appeals) taking into consideration the fact that the appellant had not submitted any copy of the writ petition filed before the Hon ble High Court and there was no order from the Hon ble Court directing not to pass any order consequent to non compliance of stay order. Vide order-in-appeal No. 24/ST/BBSR-I/2013 dated 26.03.2013, the Ld. Commissioner (Appeals) rejected the appeal for non-compliance of the order of deposit under Section 35 of the Central Excise Act, 1994. Being aggrieved, with the above-mentioned Order-in-Appeal dated 26.03.2013, the appellant filed an appeal before the Hon ble CESTAT, EZB, Kolkata. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2006-2007. It is his submission that the partnership firm M/s. Universal Travels was registered with the service tax and the confirmation of entire service tax demand of the Erstwhile Partnership Firm against Smt. Priyatama Mohanty (one of the erstwhile partner), holding her as the sole proprietor is bad in law in as much as the liability of the erstwhile partnership firm cannot be shifted to any one partner holding him/her as the sole proprietor. He strongly contended that the Show Cause Notice was issued to the partnership firm and its partners for the period during which M/s. Universal Travels was in the business of providing Rent-A-Cab Service as a partnership firm. Hence, the Adjudicating Authority has traversed beyond the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission to the effect that it was a sole Proprietary firm from the beginning is bad in law. The organization of the firm was Partnership and it is evident not only form the application form in ST-1, but also from the Balance Sheet which has been signed by the Partner Shri Santosh Kumar Sarangi. 7. I further find that the other partner Shri Santosh Kumar Sarangi was given over all charge of the organization since the Appellant is a house-wife, completely ignorant about the complex provisions of Service Tax procedures and as submitted earlier, due to her engagement in attending to her disabled husband, she was not able to concentrate in the Partnership work. 8. I also find that in the Show Cause Notice, there is no allegation agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio of the decision of Hon ble High Court of Jharkhand in the case of Damodar Valley Corporation Vs. CCE reported in 2014-302-ELT-30 is squarely applicable to the facts of the present case. The relevant paragraph of the above-mentioned decision of the Hon ble High Court is reproduced as under:- 7. Having heard the counsel for both the sides and looking to the facts and circumstances of the case, we hereby quash and set aside the following paragraphs from the order of Additional Commissioner, Central Excise, Ranchi : (ii) On DVC, CTPS, as they are fully involved in receiving above referred services from the Noticee in turn owe the Service Tax dues to the Noticee, to compensate the entire financial loss including interest an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Additional Commissioner, Central Excise, Ranchi that if any observation is made against any party which may impose financial liability then at least notice should have been given an opportunity of being heard should have been given to the concerned party. 8. Looking to the order passed by the Additional Commissioner, Central Excise, Ranchi, we find that it has travelled beyond show cause notice given to the service provider i.e. Respondent No. 3. The present petitioner is service receiver. Thus, the directions and observations made by the Additional Commissioner, Central Excise, Ranchi as stated hereinabove, are hereby quashed and set aside because the same are observed in the impugned order without giving any notice and without g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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