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TMI Blog2023 (6) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... ame could not be taken into consideration by respondent No. 2 when he passed the impugned orders. Thus certainly on such premise, there was a prejudice which was suffered by the petitioner in non-consideration of such submissions. Any breach of the principles of natural justice would be required to be attributed as an incurable defect qua the impugned order. It would be appropriate in the facts and circumstances of the present case that respondent No. 2 takes a holistic view of the matter considering the decision of the tribunal in EMU Lines Pvt. Ltd. vs. Commissioner of CGST and Central Excise, Belapur [ 2023 (6) TMI 64 - CESTAT MUMBAI] , which considers a prior decision of the tribunal in Greenwich Meridian Logistics (I) Pvt. Ltd. [ 2016 (4) TMI 547 - CESTAT MUMBAI] . On a perusal of the impugned order, it appears that such decision has not been considered. Respondent No. 2 needs to hear the petitioner afresh on the show cause notices, and after taking into consideration the facts of the case - the impugned order dated 29 May, 2019 passed by respondent No. 2 is required to be quashed and set aside relegating the petitioner to the jurisdictional Commissioner as may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ, order or direction in the nature of a Writ of Declaration to declare that the provisions of Section 35F of Central Excise Act, 1944 (Exhibit F) as being manifestly arbitrary and violative of Article 14/19 of the Constitution. f) that, pending decision of this petition, such ad-interim and/or interim order may be passed by this Hon ble Court staying the operation of the impugned order vide Order-in-Original No. MUM.SOUTH/CGST/Pr. Commr- 09 to 11/2019-20 Dated 29.05.2019 issued by Respondent No. 2 (enclosed in Exhibit A), and any other letter/notice issued pursuant thereto and direct the officers not to take any coercive action pending disposal of this writ petition; 3. On 12 October, 2007, the petitioner was registered as service provider of Cargo Handling Services with erstwhile Service Tax-II Commissionerate and was assigned a registration number. On 15 October, 2015, first show cause notice for the period 2010-11 to 2013-14 demanding service tax of Rs. 3,68,22,353 was issued by respondent No. 2- Principal Commissioner of CGST CE, Palghar Commissionerate. The petitioner replied to the show cause notice by its reply dated 15 January, 2016. It appears that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of service charges, for services provided by the petitioner to its client for transportation of goods by the airlines, and that, such services were in the nature of Business Auxiliary Services prior to 2012 and was a service after 2012 and accordingly, was liable for levy of service tax. 7. Mr. Raghuraman, learned senior counsel for the petitioner has fairly stated that the orders passed by respondent No. 2 are appealable orders, he would, however, submit that an exception is required to be made in the present proceedings, so as to not relegate the petitioner to an appellate remedy, as according to him, there was a patent breach of principles of natural justice in passing the impugned order. It is submitted that respondent No. 2 in passing the impugned order-in-original has failed to consider the additional written submissions as filed by the petitioner with respondent no. 3, which was under a mistaken belief, that it is respondent no. 3 who is the adjudicating authority, who would be passing the final orders on the show cause notices. It is submitted that it is imperative that an approach of holistic consideration on all the issues be adopted in passing the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4. (a) carrier means a person who performs or undertakes to perform for a hire, the carriage or part thereof, of goods by road, rail, inland waterways, sea or air; 12. The appellant takes responsibility for safety of goods and issues a document of title which is a multi-modal bill of lading and commits to delivery at the consignee s end. To ensure such safe delivery, appellant contracts with carriers, by land, sea or air, without diluting its contractual responsibility to the consignor. Such contracting does not involve a transaction between the shipper and the carrier and the shipper is not privy to the minutiae of such contract for carriage. The appellant often, even in the absence of shippers, contract for space or slots in vessels in anticipation of demand and as a distinct business activity. Such a contract forecloses the allotment of such space by the shipping line or steamer agent with the risk of non-usage of the procured space devolving on the appellant. By no stretch is this assumption of risk within the scope of agency function. Ergo, it is nothing but a principal-to-principal transaction and the freight charges are consideration for space procured fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the tribunal in case of EMU Lines Pvt. Ltd. (supra) as also confirmed by the Supreme Court. He, however, contends that all these issues can be taken into consideration if the petitioner is made to avail of the remedy of an appeal, as the statute would mandate. 10. We have heard learned counsel for the parties and with their assistance, we have also perused the record and the decisions as cited on behalf of the petitioner. 11. It appears to be quite peculiar that initially the adjudication of the show cause notices was taken up by respondent no. 3, however, in view of the order passed by respondent no. 5, the same was transferred/assigned to respondent No. 2, as the incumbent who was earlier holding the post of respondent no. 3-Commissioner of CGST, during the pendency of adjudication of the show cause notices, was promoted to the post of Principal Commissioner. It also appears that the additional written submissions, which were quite material on law and facts, were in fact placed on record by the petitioner inadvertently before respondent no. 3, hence, the same could not be taken into consideration by respondent No. 2 when he passed the impugned orders. Thus certainly on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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