Custom, Excise & Service Tax Tribunal
Divisional Railway Manager vs Cce & St, Allahabad on 7 October, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 07.10.2013 For Approval and Signature: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of 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? Service Tax CoD No. 57346 of 2013, Service Tax Stay No. 57345 of 2013 and Service Tax Appeal No. 56814 of 2013 (Arising out of Order-in-original No. 14/2012 dated 26.10.2012 passed by the Commissioner, Central Excise & Service Tax, Allahabad). Divisional Railway Manager Appellant North Eastern Railway Vs. CCE & ST, Allahabad Respondent
Appearance: Sh. P. S. Goindi, Advocate for the appellant Ms.Ranjana Jha, Jt. CDR for the Revenue Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member Final Order No. 57897/2013 Per: Justice G. Raghuram:
Proceedings were initiated for realisation of service tax dues under the taxable services renting of immovable property; and sale of space for advertisement, provided by the Union of India, Indian Railways. The Railway properties are located within the administrative jurisdiction of the Divisional Railway Manager, North Central Railway, Allahabad.
2. Proceedings were initiated by the show cause notice dated 28.02.2011 culminating in an adjudication order dated 26.10.2012 passed by the Commissioner of Central Excise, ST, Allahabad. Service tax, interest and penal liability as specified were confirmed. Appeal is preferred against the said order.
3. At all stages of the proceedings i.e. including issuance of the show cause notice, service thereof, the adjudication proceedings and the appeal preferred before this Tribunal, the Divisional Railway Manager, North Central Railway, Allahabad is arrayed as the sole parwty. At no stage of the proceedings was the Union of India, Ministry of Railways represented by a designated and authorised representative, impleaded as a party.
4. It is axiomatic and the principle is mandated by the provisions of the Constitution (Article 300) and Section 79 of the Code of Civil Procedure 1908 as well, that wherever a suit is to be instituted against the Central Government., the proceedings should be initiated against the addressee described as the Union of India. Apart from the constitutional and statutory provision, the principle is covered by a catena of binding authority. Reference may be made to the decision of the Supreme Court in Chief Conservator of Forests, Govt. of A.P. vs. Collector and Others AIR 2003 SC 1805.
5. In the aforesaid circumstances, the entirety of the proceedings initiated resulting in the adjudication order, which is the subject matter of this appeal is a nullity and no service tax, interest or penalty could be validly realised under the void adjudication order, in respect of any liability attributable to the Union of India, Ministry of Railways. Since the necessary party was not impleaded nor put on notice at any stage of the proceedings, the appeal preferred by the Divisional Railway Manager, North Central Railway, Allahabad is also for the same reason incompetent, with these observations and a declaration that the adjudication order is a nullity, this incompetent appeal is rejected.
(Justice G. Raghuram) President (Sahab Singh) Technical Member Pant 1