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TMI Blog2024 (5) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... tially involves adjudication into facts, which cannot be done in exercise of jurisdiction under Article 226 of the Constitution of India solely based upon affidavits. Therefore, the matter has to necessarily go back to the adjudicating authority for fresh consideration. The matters are remanded back to the adjudicating authority for a fresh decision - Appeal allowed by way of remand. - HON BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA Appearance:- For the Appellant : Mr. Pranab Kr. Datta, Ld. Sr. Adv. Mr. Saurabh Bagaria Mr. Indranil Banerjee Mr. Subrata Mukherjee in M.A.T. 1267 of 2023. For the Appellant : Mr. Shovendu Banerjee Ms. Sangita Saba Yasmin in M.A.T. 1268 of 2023. For the Appellant : Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per and necessary parties will be heard in the matter. The operative portion of the judgment is quoted hereinbelow: 10. In the result, the three appeals are disposed of by this common judgment and order by directing the concerned Service Tax Commissionerate to issue fresh notices to the appellants as well as KMC which shall be treated as continuation of the earlier show cause notices. After hearing the parties, the concerned authority shall adjudicate the issue and pass a reasoned order on merits in accordance with law. In the meantime, we request the learned CESTAT to defer the hearing of the proceedings which are pending before it in Appeal No. ST/75994/2018 and ST/76382/2018 until the adjudication is completed in terms of the above direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was required to issue show cause notices to the assessees as well as to the KMC and both the assessees and KMC were granted time to file their replies and thereafter adjudication proceedings was directed to commence and completed within a time frame. The authorised representatives of the assessees and KMC were directed to be afforded an opportunity of personal hearing. Pursuant to such direction, a show cause-cum-demand notice dated 5th August, 2022 was issued. 4. Substantial part of the notice reiterates the earlier stand and in the final paragraph of the show-cause notice, KMC was requested to clarify the position to the adjudicating authority regarding the liability to service tax of the mentioned services received by them from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would stand defeated. Regrettably, the adjudicating authority while dealing with the request of the assessee to supply copies of the views submitted by the KMC has arrived at an incorrect conclusion, more particularly, in paragraphs 80 to 83 of the orders in original dated 5th December, 2022/7th December, 2022/ 8th December, 2022. The observations that the views furnished by the KMC is not a relied upon document and therefore, not required to be furnished to the assessee is an incorrect conclusion. 7. It is no doubt true that the reply given by the KMC is not a relied upon document but the purpose for which the matter was remanded to the adjudicating authority for an adjudication process was to have an effective adjudication and the Court c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submission was never furnished to the assessees. Therefore, the only irresistible conclusion that can be arrived at is that there is gross violation of the principles of natural justice apart from misreading and misinterpreting the observations made by the Court in the earlier judgment, more particularly in the paragraphs referred (supra). 10. The learned senior advocate for the appellants would contend that the correctness of the impugned order should be considered by this Court in these appeals. In our view, an order of adjudication requires the authority to not only consider the respective stand of the parties but also to appreciate the documents and details, which may be placed before the authority for consideration. These essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that show-cause notices dated 5th August, 2022 are not in consonance with the directions issued in the earlier judgment and therefore, the adjudicating authority while adjudicating the case should also adjudicate and decide on the assessee s contention that the service tax component, which is remitted by them as service providers has to be reimbursed by the recipient, KMC. Thus, the adjudication should encompass this aspect also. 15. After hearing the parties and considering all the documents placed by either parties, the adjudicating authority shall pass fresh orders on merits and in accordance with law uninfluenced by any observation made in the orders in original 5th December, 2022/7th December, 2022/ 8th December, 2022, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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