Custom, Excise & Service Tax Tribunal
M/S Ocean Container Terminal Pvt. Ltd vs Cce, Raigad on 1 September, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II APPLICATION NO. ST/S/92405/14 IN APPEAL NO. ST/85196/14 (Arising out of Order-in-Appeal No. SK/270/RGD/2013-14 dated 30.09.2013 passed by the Commissioner of Central Excise (Appeals), Raigad.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
1. Whether Press Reporters may be allowed to see : No
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 : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Ocean Container Terminal Pvt. Ltd.
: Appellant
Versus
CCE, Raigad
: Respondent
Appearance
Shri Vijay Kumar, Advocate
: For Appellant
Shri Prabhudesai, Superintendent (A.R.)
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 01.09.2014 Date of Decision: 01.09.2014
ORDER NO.......................................................
Per: Anil Choudhary:
The appellant M/s Ocean Container Terminal Pvt. Ltd. has filed this appeal against the Order-in-Appeal No. SK/270/RGD/2013-14 dated 30.09.2013 passed by the Commissioner of Central Excise (Appeals), Raigad.
2. Brief facts of the case are that the M/s Ocean Container Terminal Pvt. Ltd. are engaged in providing various services like cargo handling, storage and warehousing, maintenance and repair service and renting of immovable property. Export of cargo handling services is exempt from payment of Service Tax and the appellants are not paying Service Tax on such services. During the course of audit, it was noticed that the appellants have availed CENVAT credit on common inputs but not maintained separate records and not reversed the proportionate CENVAT credit. Hence contravened the provisions of Rule 6 of CENVAT credit Rules, 2004. Show-cause notice dated 20.10.2011 was issued which later culminated into the impugned order.
3. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who was pleased to dismiss the appeal on limitation. Being aggrieved the appellant is in appeal before this Tribunal.
4. The appellant have raised the grounds among others stating that the show-cause notice dated 20.10.2011 was never served neither the notice of personal hearing nor the Order-in-Original was served. The appellant came to know about Order-in-Original for the first time on receiving the recovery notice dated 08.02.2013 on 16.02.2013. Thereafter, it inquired from the Revenue and came to know that exparte Order-in-Original was passed on 16.06.2012 and it was dispatched vide speed post on 29.06.2012 but was not served on the appellant. Thereafter, the appellant had applied for certified copy on 25.04.2013 and same has been received on 04.06.2013 and thereafter the appeal was filed before the Commissioner (Appeals) on 24.06.2013. These facts were brought to notice of the Commissioner (Appeals) by way of affidavit dated 21.06.2013 duly sworn before the Notary Public. The learned Commissioner (Appeals) have erred in not taking cognizance of the affidavit filed by the appellant. The Commissioner (Appeals) without rebutting the facts stated in the affidavit, simply rejected the affidavit on irrelevant and flimsy grounds. The appellant accordingly prays for setting aside the impugned Order-in-Original and Order-in-Appeal for the ends of justice, as Order-in-Original has been passed without serving notice, thus wholly without jurisdiction.
5. The learned A.R. relies on the impugned order and have further produced some evidence of the photocopy of the dispatch register which shows dispatch of show-cause notice on 20.10.2011 vide entry no. 8785 in the dispatch register. Further evidence for dispatch of Order-in-Original on 02.07.2012 vide registered post acknowledgement due. Accordingly, in view of the dispatch of Order-in-Original prays for upholding of dispatch of Order-in-Original.
6. Having considered the rival contentions, I find that as per provisions of Section 37C of Central Excise Act wherein it is provided that show-cause notice and order should be delivered either by hand or dispatched by speed post/registered post with acknowledgement due. I find that the Revenue has failed to furnish the service proof of both the show-cause notice and the Order-in-Original. In view of the non-production of evidence of service of show-cause notice and Order-in-Original and in view of affidavit of the appellant, it is just and proper to set aside both the Order-in-Appeal and Order-in-Original for ends of the justice and I remand the matter back to the adjudicating authority, who shall provide copy of the show-cause notice by hand giving sufficient time to submit the reply/objection and after hearing the appellant to pass a fresh adjudication order in accordance with law. The appellant is also directed to appear before the adjudicating authority and seek opportunity to hearing within a period of six weeks from receipt of a copy of this order. Thus, the appeal is allowed by way of remand.
(Pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4