Custom, Excise & Service Tax Tribunal
Cce, Delhi-V, Rohtak vs M/S.Indian Oil Corporation Ltd on 25 August, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Service Tax Appeal No.815 of 2010
(Arising out of Order-in-Appeal No.121/MA/RTK/2010 dated 16.3.10 passed by the CCE(A), Delhi-III, Gurgaon)
Date of Hearing/Decision: 25.08.2011
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Mathew John, 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?
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?
CCE, Delhi-V, Rohtak Appellant
Vs.
M/s.Indian Oil Corporation Ltd. Respondent
Present for the Appellant: Shri Amrish Jain, SDR
Present for the Respondent: Shri L.P.Asthana, Advocate
Ms,Neha Gulati, Advocate
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Mathew John, Member (Technical)
ORDER NO._______________
PER: ARCHANA WADHWA
Being aggrieved with the order passed by the Commissioner (Appeals), the Revenue has field the present appeal. For better appreciation, we reproduce the relevant paragraph of the order of Commissioner (Appeals):-
The Adjudicating Authority has confirmed demand of Service Tax on amount charged from IOC dealers as rent out of SSLF against properties leased to the dealers. The show cause notice issued to the appellants was in respect of Service Tax chargeable on the services provided as Business Auxiliary Services. I observe there has been gross violation of principles of natural justice since the demand has been confirmed on service tax payable as Renting of Immovable Property Services whereas the show cause notice was issued for Business Auxiliary Service. No show cause notice was issued in this regard. No opportunity to contest this allegation was provided to the appellants by way of written submission/personal hearing. I observe that principles of natural justice have been violated.
If at all the department felt that the said activity is covered under Renting of immovable property they should have proceeded to recover the same under section 73 of the Act as per the prescribed procedure.
The Apex Court in the case of Duncas Industries Limited v. Union of India also held that Section 37 C of the Central Excise Act only incorporates the well known principles of natural justice that no body should be condemned unheard.
In view of the above discussions, I set aside the Adjudication order being legally unsustainable and allow the appeal.
2. As seen from the above, the appellate authority has allowed appeal on the sole ground that the assessee was not heard in person as regards the service tax payable on renting of immovable property. If that be so, the appellate authority should have remanded the matter to the lower authorities for observing the principle of natural justice instead of allowing the appeal in its totality. We accordingly set aside the impugned order and remand the matter to the original adjudicating authority for de novo consideration. Needless to say that the assessee would be given an opportunity to put forth their case. We make it clear that we are not expressing any opinion on the merits of the case. The Revenues appeal is allowed by way of remand.
(Pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) (MATAHEW JOHN) MEMBER (TECHNICAL) mk 4