Custom, Excise & Service Tax Tribunal
Society For Information Technology ... vs Commissioner Of Central Excise, ... on 25 October, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 26843 / 2013 Application(s) Involved: ST/COD/26939/2013 in ST/26599/2013-DB ST/Stay/26940/2013 in ST/26599/2013-DB ST/Early Hearing/26941/2013 in ST/26599/2013-DB Appeal(s) Involved: ST/26599/2013-DB [Arising out of Order in Original No.01/2012, dated 28.2.2012 passed by Commissioner of Central Excise, Customs and Service Tax, CALICUT.] Society For Information Technology Development 4th Floor, KVR Tower, Near Mahatma Mandir, KANNUR - 670002 KERALA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax - CALICUT CENTRAL REVENUE BUILDING, MANANCHIRA, CALICUT, KOZHIKODE - 673001 KERALA Respondent(s)
Appearance:
Mr. Anil Kumar. B, Advocate For the Appellant Mr. Ganesh Havanur, Addl. Commissioner (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI ANIL CHOUDHARY, JUDICIAL MEMBER Date of Hearing: 25/10/2013 Date of Decision: 25/10/2013 Copy forwarded to :
1.Commissioner of Central Excise, Customs and Service Tax-CALICUT
2. The JCDR, CESTAT Bangalore.
3.Indirect Tax Bar Association CESTAT, Bangalore
4.M/s. Centax Publications(P) Ltd.
5.M/s. Company Law Institute of India (P) Ltd.
6.M/s. Taxindiaonline.com (p) Ltd. Bangalore.
7. M/s. Tax Man Allied Services Ltd New Delhi.
8. M/s. Easy Service Tax Online Dot Com P Ltd New Delhi.
9. M/s. Lawcrux Advisors P Ltd. Faridabad.
10. M/s. Mark Professional Services (P) Ltd.
11.Guard File.
Order Per : B.S.V.MURTHY The appellant is seeking condonation of delay of 358 days in filing the appeal. An affidavit in support of claim filed by the Secretary for the society has been placed before us. The learned counsel on behalf of the appellant submitted that when the DGCEI raided their office in December 2008 and subsequent actions by the department scared their franchisees, employees, etc. As a result, many franchisees closed their branches and further many of them filed cases in various courts which created lot of difficulties to the appellants. When appellants were tackling these several problems, the adjudication proceedings started and the appellants requested for documents. The documents were not provided and they were advised to go to DGCEI office and collect the same. However, they could not collect the documents and their request for supply of documents was not accepted and the order was passed. Unfortunately when the order was received, one of the employees whose name has been mentioned in the affidavit has received the same in February 2012 and in March 2012 she left the employment without informing about the receipt of the order and without even handing over the copy. In November 2012, when the department informed their bankers to remit the money and stop all payments, bank intimated them and that is how they came to know about the order being passed against them. Thereafter, they obtained a copy of the order and filed the appeal.
2. After hearing the sad story narrated by the learned counsel, we consider that it would be in the interest of justice to condone the delay, even though delay is substantial i.e., 358 days. We do so.
3. We also find that appellants were requesting for documents and they were advised to go and collect the same and even at the time of personal hearing, the person who appeared for the personal hearing requested for the documents. However, the Commissioner has observed that they were given several opportunities to take photocopy of the documents required by them and they did not utilize such opportunities and therefore he proceeded to adjudicate the matter. It is the submission of the learned counsel that they could not prepare the defence in absence of documents and even appeal could not be filed properly without of non-availability of seized documents.
4. The learned counsel relied upon several decisions to submit that it is the duty of the department to provide relied upon documents and appellants cannot be asked to take copies of the documents. No contrary decision was brought to our notice by learned DR. Moreover, we also consider that relied upon documents have to be supplied since it is obligatory to issue a complete show-cause notice and without enclosures i.e. relied upon documents, the show-cause notice would be incomplete and therefore adjudication process completed without providing the documents relied upon cannot be said to have been completed after observing principles of natural justice. Therefore, we consider it appropriate that the matter is remanded at this stage itself to the original adjudicating authority so that the original adjudicating authority can pass a fresh adjudication order after supplying the copies of the documents relied upon to the appellant and observing principles of natural justice. Accordingly, the COD application is allowed, stay application is also allowed and the appeal itself is taken up, impugned order is set aside and the matter is remanded to original adjudicating authority for fresh adjudication.
5. At this stage, we find that there is a miscellaneous application for early hearing of the appeal, which has not been listed in todays cause list. Since the stay and appeal itself has been decided, the miscellaneous application is rejected as infructuous.
(Operative portion of this Order was pronounced in open court on conclusion of hearing on 25.10.2013.) ANIL CHOUDHARY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3