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TMI Blog2019 (4) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... s by now well settled that in Appeal filed before the CESTAT, it is required to refer to all the materials before the Commissioner (Appeals). The order passed by CESTAT is devoid of any reason. The decision of the Commissioner is overruled with a single observation that there is no foundation in the show cause notice bringing out whether any service element is involved while renting the wagons by the respondent Assessee to the Railways and that in the absence of any such foundation, there cannot be taxability. CESTAT while deciding the Appeal has to exercise its jurisdiction as a fact finding authority. We find that the CESTAT has recorded only an abrupt finding without discussing the issue and without mentioning any reason for their conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x registration. By an agreement dated 12/06/2009 between the Assessee and the Central Railways, the respondent Assessee has given 416 wagons to Railways on lease/rent for 20 years. By letters dated 29/09/2011 and 07/12/2011, the Assessee informed the Railways that they had received an amount of ₹ 13,04,29,833/ from Railways during the financial year 200809 to 201112 (upto December 2011). According to the appellant, the said activity of the leasing of wagons is liable to service tax under the category of "supply of tangible goods services under section 65(105) (zzzzj) of the Finance Act, 1994. These facts were concealed by the Assessee and found by the auditors of the Central Excise, Raigad Commissionerate. A show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel would submit that while reversing the well reasoned order of the Commissioner, there is absolutely no discussion in the impugned order as to why the Appeal deserves to be allowed. Learned Counsel would submit that the CESTAT, while hearing the Appeal filed under section 35G of the Central Excise Act, 1944, section 129(B) of the Customs Act, 1962 and Finance Act, 1994, is a fact finding authority and expected to pass a reasoned order in support of its conclusions. Learned Counsel would submit that the CESTAT has recorded an abrupt finding without discussing the issue raised before it and without recording any reasons for its conclusion. Learned Counsel next contended that CESTAT while hearing the Appeal was required to refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. He would submit that if Tribunal holds that there is no foundation in the show cause notice bringing out whether any service element is involved while renting wagons by the respondent Assessee to the Railways, and 'in absence of any such foundation, there cannot be any taxibility'. According to him, it cannot be said that the view of the Tribunal is perverse so as to warrant any interference. He would submit that though the Tribunal is a fact finding authority, but when the very foundation of the appellant's case about there being any service element involved while renting out wagons is missing in the show cause notice, no fault can be had with the order passed by the CESTAT. He would therefore submit that the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the both the parties. (b) The assessee vide their letter F.No. RCF/Thal Excise/201112 dated 29.09.2011 and on 07.12.2011 submitted the information that they have received lease rent amounting to ₹ 13,04,29,833/ from the Railways during the period 200809 to 201112 (Upto December, 2011). (c) This activity of the assessee of leasing railway wagons to Railways is liable to Service Tax under the category of "Supply of tangible goods service" under Section 65(105)(zzzzj). 13. After considering the defence of the Assessee, by a reasoned order, the Commissioner dealt with the facts of the case in detail confirming the demand of service tax and further consequential order of interest and penalty was passed. 14. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be taxability. CESTAT while deciding the Appeal has to exercise its jurisdiction as a fact finding authority. We find that the CESTAT has recorded only an abrupt finding without discussing the issue and without mentioning any reason for their conclusion. 16. The Commissioner after a detailed discussion on the facts of the case passed a reasoned order and decided the Appeal. These facts are not adverted to or dealt with by CESTAT. The perfunctory manner in which Appeal is allowed cannot be countenanced in as much as the order passed by CESTAT is a cryptic order. If at all, the CESTAT was of the view that OrderinOriginal passed by the Commissioner deserves reversal, then, it was necessary for the CESTAT to have so done by giving ..... X X X X Extracts X X X X X X X X Extracts X X X X
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