CESTAT, Bangalore Bench
Kalathil Brothers Construction Co. (P.) Ltd.
Commissioner of Central Excise, Customs & Service tax
STAY ORDER NO. 84 OF 2012
FINAL ORDER NO. 39 OF 2012
Appeal Nos. ST/Stay/798 of 2010 in ST/1377 of 2010
JANUARY 11, 2012
M. Veeraiyan, Technical Member
After hearing both sides for a while on the stay petition, we deem it proper to waive the pre-deposit of balance of dues as per the impugned order and dispose of the appeal itself finally.
2. A show-cause notice dated 23.10.2008 was issued to the appellants alleging that they were rendering “Maintenance and Repair Service” and proposing a demand of Rs. 1,04,08,020/- along with interest and proposing penalties under various Sections. The appellant submitted reply and claimed that they were rendering not only ‘maintenance and repair service’ but also other taxable services. It was also claimed by them that the various services rendered by them became taxable on different dates. The Commissioner heard the appellant on different dates during the period from June to July 2009. It is apparent from the Commissioner’s order that the appellants had filed a letter dated 28.12.2009 submitting records/documents such as work orders, bills/invoices, ledger accounts, etc. in support of their submissions. According to the appellant, the duty liability was only to the tune of Rs. 22,35,843/- and that they had paid totally Rs. 18,00,015/- on 13.11.2009 and 24.12.2009. In addition, they have paid a sum of Rs. 82,400/- on 8.10.2009 and further sum of Rs.3,53,423/- on 23.10.2010.
3. The main grievance of the appellant is that the Commissioner got a verification report dated 30.12.2009 from the Assistant Commissioner (Anti-Evasion) which indicated the Service Tax liability as Rs. 55,80,580/- and the said report was not made available to them and the Commissioner has accepted the version given by the Assistant Commissioner (Anti-Evasion) without granting them an opportunity to contest the veracity of the report.
4. These factual submissions are not being contradicted by the learned Commissioner (AR).
5. We, therefore, find that a demand of Rs.55,80,580/- stands confirmed on various services as against the proposal in the show-cause notice demanding Rs. 1,04,08,020/- under the category of ‘maintenance and repair services’. It is not appropriate that the report dated 30.12.2009 of the Assistant Commissioner (Anti-Evasion) relied upon by the Commissioner was not supplied to the assessee and a higher demand than what was claimed by the assessee has been confirmed. This is clearly in violation of principles of natural justice. We are not going into the claim of the appellant that they have paid a sum of Rs. 22,35,843/- as against the amount of Rs. 18,00,015/-appropriated in the order of the Commissioner. This factual position has also to be verified by the Commissioner.
6. Since order of the Commissioner has been passed in violation of principles of natural justice, we set aside the order of the Commissioner and remand the matter for fresh consideration after furnishing copy of the report dated 30.12.2009 of the Assistant Commissioner (Anti-Evasion) and after giving them an opportunity to file written submissions and granting reasonable opportunity of hearing.
7. Appeal is allowed by way of remand on the above terms. Stay petition is also disposed of.