9911796707
TMI Blog2021 (2) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 requested the Commissioner(Appeals) for grant of personal hearing. The appellant even filed RTI application to find out the where about of the appeal and came to know that the appeal is lying with the Commissioner of Service Tax. Further it is found that if the appeal was filed wrongly before the Commissioner of Service Tax, then it was the duty of the CST to have sent the same to the Commissioner(Appeals) who was located in the same building but the same was not done by the Department and therefore the time spent in pursuing the appeal before the wrong forum is condonable. Matter remanded back to the learned Commissioner(Appeals) with direction to decide the appeal on merits after complying with the principles of natural justice - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters vide Section 83 of the Finance Act, 1994. After due course of proceedings, the adjudicating authority passed the impugned order rejecting their refund claim on the ground that the appellant have admitted that the department has viewed the said services under Telephone Services and not under Business Auxiliary Service , the deposited tax is considered to have been deposited for the Telephone services provided by the appellant. The said services were taxable under Section 65(105)(b) of Finance Act, 1994 and there did not exist any exemption notification, the tax payment was correct and question of refund does not arise. The adjudicating authority also held that service to inbound roamers was delivered and consumed in India so it does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e(Appeals). It is his further submission that it is evident from the communications between the appellant and the office of the Commissioner of Service Tax that the learned Commissioner of Service Tax has acknowledged the filing of the appeal before him on 19/12/2017 and hence it is not disputed fact that the appeal papers were received in the office of the Commissioner of Service Tax and the same is available with them as recorded in the register as IC No.4437 at page No.254. He further submitted that the concerned authority should have transferred the appeal to the office of the learned Commissioner(Appeals) once it came to their knowledge that the appeal ought to have been filed before the learned Commissioner(Appeals). He also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er(Appeals) as provided in the preamble of the Order-in-Original. 5. After considering the submissions of both the parties and perusal of the material on record and the decisions relied upon by the appellant, we find that admittedly, the appellant has filed the appeal on 19/12/2007 but the same was wrongly filed before the Commissioner of Service Tax which was located in the same building. The factum of receipt of the appeal in the office of Commissioner of Service Tax is admitted in the correspondence between the appellant and the Department. Further, we find that after filing the appeal, the appellant vide its letter dt. 01/12/2008 and subsequent reminder dt. 12/12/2010 requested the Commissioner(Appeals) for grant of personal hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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