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TMI Blog2021 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... did not appear nor any adjournment was sought, another letter dated January 10, 2018 was sent to the appellant by speed post for appearance on January 23, 2018. However, on that date, a letter dated January 23, 2018 was received by the Commissioner (Appeals) from the appellant seeking adjournment for the reason that the aforesaid letter dated January 10, 2018 was received by the appellant only on January 23, 2018. The Commissioner (Appeals) did not grant an adjournment as he did not believe that the letter dated January 10, 2018 that was sent by speed post was received by the appellant on January 23, 2018. The Commissioner (Appeals) did not have any proof of the postal department regarding service of the letter dated January 10, 2018 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), by which the order dated May 30, 2017 passed by the Joint Commissioner dropping the proceedings initiated by show cause notice dated May 22, 2013 has been set aside and the appeal filed by the Revenue has been allowed. 2. Shri Hemant Bajaj learned Counsel for the appellant assisted by Ms. Sukriti Das submitted that the order passed by the Commissioner (Appeals) has been passed ex-parte for the reason that though the appellant had sought adjournment on January 23, 2018 since it received the letter intimating that hearing would take place on January 23, 2018 itself, but instead of adjourning the matter, the Commissioner (Appeals) decided the appeal on merits. He however, also submitted that the Tribunal may decide the matter on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to decide the matter based on the available records. The respondent has also not filed any rejoinder in the matter despite ample time given to them. 8. From the appeal memorandum, I find that the appellant has raised objection on allowing credit on the basis of CA s certificate and challans which do not contain complete details. The appellant has stated that the CA s certificate/challans/ISD invoices which do not contain the desired information as required under rule 4A(2) of the Service Tax Rules, 1994 are improper documents. The receipt of service by the respondent and the payment of service tax by the HO of the respondent are not under dispute, but the challans/ISD invoices issued by the HO do not contain the details of the provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date, a letter dated January 23, 2018 was received by the Commissioner (Appeals) from the appellant seeking adjournment for the reason that the aforesaid letter dated January 10, 2018 was received by the appellant only on January 23, 2018. The Commissioner (Appeals) did not grant an adjournment as he did not believe that the letter dated January 10, 2018 that was sent by speed post was received by the appellant on January 23, 2018. 7. The Commissioner (Appeals) did not have any proof of the postal department regarding service of the letter dated January 10, 2018 and only a presumption has been drawn by the Commissioner (Appeals) that since the letter dated January 10, 2018 was sent by speed post, it must have been delivered prior to Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. A perusal of the said document clearly indicates that Central Excise Appeal no. 704 of 2012 was filed by the Department against the order dated February 10, 2012 passed by the Tribunal and while admitting the appeal, the following questions of law were framed by the High Court:- We have heard Shri R.C. Shukla, learned counsel for the department. The appeal is admitted on the following questions of the law- (i) Whether the head office of the party, not registered with the department under the provisions as envisaged under Notification No. 26/2005-Service Tax, dated 7-6-2005 issued in terms of sub-section (2) of Section 69 of the Finance Act, 1994 is eligible to issue any document to pass on the credit to their manufacturing uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reproduced the note of the author of the journal. 13. What is also important to notice is that after the appeal was admitted on August 24, 2012, it came up for final hearing before the Allahabad High Court and was ultimately dismissed by judgment dated November 22, 2017. 14. These facts have been pointed out so that the Commissioner (Appeals), when the matter is remanded, takes these facts into consideration. 15. Thus, for the reason stated above, the order dated January 31, 2018 passed by the Commissioner (Appeals) is set aside and the Commissioner (Appeals) is directed to decide the appeal afresh after providing opportunity to the appellant, without being influenced by any of the observations made in the earlier order dated Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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