Custom, Excise & Service Tax Tribunal
M/S. Travel Club Forex P. Ltd vs Cce, Hyderabad on 12 April, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing: 12/04/2010
Date of decision:12/04/2010
Appeal No.ST/748/09; Appn. No.ST/St/458/09
(Arising out of Order-in-Appeal No.29/2009(H-II)S.Tax. dt. 20/5/2009 passed by Commissioner(Appeals), Hyderabad)
For approval and signature:
Honble Mr. M.V. Ravindran, Member(Judicial)
Honble Mr. B.S.V. Murthy, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Travel Club Forex P. Ltd.
..Appellant(s)
Vs.
CCE, Hyderabad
..Respondent(s)
Appearance Mr. R.Muralidhar, Advocate for the appellant.
Ms. Sudha Koka, SDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________2010 Per M.V.Ravindran This stay petition is filed for waiver of pre-deposit of the following amounts:-
a. Service Tax Rs.47,55,273/- b. Penalty Rs.200 per day u/s 76. c. Penalty Rs.19,28,359/-
2. The relevant facts that arise for consideration are that the appellants are engaged in providing Air Travel Agents service, they had taken the service tax registration in July, 1997 and were discharging service tax liability. Till 2003, the appellants were paying service tax at the rate specified from time to time on the basis of domestic and international tickets. After April, 2003, they switched over to payment on the commission received from the airlines. The lower authorities came to the conclusion that the appellant has not paid the service tax on the commission received from various airlines. To come to such a conclusion, the adjudicating authority as well as the first appellate authority has relied upon the statements/information given by various airlines / IATA. Aggrieved by such decision, the appellant is before us.
3. After hearing both sides for some time on the stay petition, we find that the issue being in a narrow compass, the appeal itself could be disposed off at this juncture. From the records, we find that the appellant has deposited some amount against the service tax liability as adjudged by the lower authorities. We consider that amount as enough deposit and waive the condition of pre-deposit of the balance amounts involved and take up the appeal itself for disposal.
4. We considered the submissions made by both sides and perused the records. On perusal of the records, we find that before the adjudicating authority, the appellant had not filed any reply to the show cause notice nor have they attended the personal hearings granted by the adjudicating authority. It is the submission of Counsel that this happened due to the mis-understanding of the law by the appellant and hence the infraction may be condoned. We are not happy with the attitude of the appellant in not filing the reply before the adjudicating authority nor attending the personal hearing. At the same time, it is the plea of the appellant that the appellants were not given the relied upon documents to defend the case properly. The ld. Commissioner(Appeals) has come to the conclusion that the appellant having not contested the show cause notice itself goes to prove that the appellant had nothing to say in the defence and that along with the show cause notice the information on which the demand was raised be made available. But for these finding, there is nothing on record to show that the appellant were given the relied upon documents for proper defence.
5. We find from the record that the appellant had not replied to the show cause notice nor attended the hearings before the adjudicating authority and were claiming before the ld. Commissioner(Appeals) that they were not given the relied upon documents. We deprecate the attitude of the appellant, at the same time since the issue is fixing of service tax liability, in the interest of justice, we hold that the appellant should be given a chance to defend his case properly before the adjudicating authority. In view of this without expressing any opinion on the merits of the case, we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue afresh. The adjudicating authority may make available the documents that may be sought by the appellant and the appellants are directed to file the reply to the show cause notice within four weeks from the receipt of this order and thereafter, the adjudicating authority may decide the matter within three months after following the principles of natural justice.
6. Stay petition and appeal are disposed off as indicated herein above.
(Operative portion of this order pronounced on conclusion of the hearing) (B.S.V. MURTHY) Member (Technical) (M.V. RAVINDRAN) Member (Judicial) Nr ??
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