Custom, Excise & Service Tax Tribunal
M/S. Sir Ganga Ram Hospital vs Cce, New Delhi on 3 June, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM,
NEW DELHI-110066
COURT NO. II
ST/Stay/1495/2010 in and
Service Tax Appeal No. 795 of 2010
[Arising out of Order-in-Appeal No. 14-15/JM/2010 dated 10.3.2010 passed by the Commissioner of Central Excise (Adjn.), New Delhi].
Date of Hearing/decision: 3rd June, 2011
For approval and signature:
Honble Shri D.N. Panda, Judicial Member;
Honble Shri Sahab Singh, Technical Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Sir Ganga Ram Hospital Appellant
Vs.
CCE, New Delhi Respondent
Present for the Appellant : Shri A.R. Madhav Rao, Adv.
Present for the Respondent : Shri Amresh Jain, D.R.
Coram: Honble Shri D.N. Panda, Judicial Member
Honble Shri Sahab Singh, Technical Member
FINAL ORDER NO. DATED
Per D.N. Panda:
Learned Counsel submits that entire details were given to the learned adjudicating authority and defence was pleaded on the basis of those documents. But the authority did not examine claim of the appellant. In support of his argument he draws our attention to para 13 of adjudication order at page 20 thereof.
2. When argument as above was made, we examined para 15 of the adjudication order at page 21 which revealed that adjudication order has been passed without examining cogent evidence on record. When the department selected returns and viewed in certain case to hold that there was no liability relating to Cenvat credit set off that is not corroborated by finding. Also the authority in that para held that no separate record was maintained to avail Cenvat credit. Order nowhere throws light, how the cogent evidence came for consideration of the matter. The authority at one place says that certain documents were considered and at another place says that books were not maintained.
3. It may be stated that when allegation is made in a show cause notice that needs to made on the basis of evidence gathered and law applicable. The appellants plea before the authority does not appear to have been recorded beginning from para 11 nor evaluated. The pleading shows that various alternative contentions were made by the appellant. We are unable to find any reason why the documents failed to reach consideration of the authority below.
4. Therefore, to save time, simply disposing the stay application we are not inclined to keep the matter pending here. When the appellant adduced plethora of documents by paper book before which escaped consideration of the Authority below, we are therefore compelled to remand the matter to the learned original authority to consider the evidence that is available on record and plea of the appellant thread bare so that a reasoned and speaking order shall be out come of the exercise. Saying so, we do not limit his power to examine all the relevant aspects that germane to the issue involved in show cause notice.
5. We do appreciate that while elaborate exercise has been made by the authority below and he tried to exhibit that justice has been done by him, that is not seemed to have been done for which our observations aforesaid arose. This, we are saying because when we go through the memorandum of understanding between the parties executed on 3.3.2005 governing relation of the appellant and the city hospital whether the service provided by the appellant was the management consultancy is not appreciable from the extent of examination done in adjudication. We, prima facie, notice that Memorandum of Understanding deals with health services, therefore, the authority has to clearly bring out how the appellant fall under the category of management consultancy service provided serve the purpose of law.
6. With aforesaid observations, dispensing with the requirement of pre-deposit, we send the matter back to the learned original authority who shall decide the issue on the point of law as well as on facts afresh in clear terms affording reasonable opportunity of being heard.
(Dictated & pronounced in the Open Court.) (D.N. PANDA) JUDICIAL MEMBER (SAHAB SINGH) TECHNICAL MEMBER RK 4