Dewanchand Ramsaran Industries Pvt. Ltd. Vs Commissioner of Central Excise & Service Tax (CESTAT Kolkata)

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA

REGIONAL BENCH - COURT NO.2

Service Tax Appeal No.117 of 2009

(Arising out of Order-in-Original No.03/COMMR/ST/ADJ/DIB/09 dated 25.03.2009
passed by Commissioner of Central Excise, Dibrugarh.)

M/s. Dewanchand Ramsaran Industries Private Limited
(Phukan Nagar, PO Shivsagar, District Shivsagar, Assam.) …Appellant

VERSUS

Commissioner of Central Excise & Service Tax, Dibrugarh …..Respondent
(Milan Nagar, Lane-F, PO, CR Building, Dibrugarh-786003.)

WITH

Service Tax Appeal No.175 of 2009

(Arising out of Order-in-Original No.03/COMMR/ST/ADJ/DIB/09 dated 25.03.2009 passed by Commissioner of Central Excise, Dibrugarh.)

Commissioner of Central Excise & Service Tax, Dibrugarh (Milan Nagar, Lane-F, PO, CR Building, Dibrugarh-786003.) …Appellant

VERSUS

M/s. Dewanchand Ramsaran Industries Private Limited (Phukan Nagar, PO Shivsagar, District Shivsagar, Assam.) …..Respondent

APPEARANCE

Shri R.G.Seth, Advocate for the Appellant (s)
Shri S.S.Chattopadhyay, Authorized Representative for the Respondent (s)

CORAM: HON’BLE SHRI P. K.CHOUDHARY, MEMBER(JUDICIAL)
HON’BLE SHRI C.J.MATHEW, MEMBER(TECHNICAL)

FINAL ORDER NO. 75564-75565/2020

DATE OF HEARING : 25 September 2019
DATE OF DECISION : 09 November 2020

P.K.CHOUDHARY :

Both the assessee and the Department are in appeal against the impugned de novo Order dated 25.03.2009 passed by the learned Commissioner, Central Excise, Dibrugarh, whereby the demand of Service Tax of Rs.2,63,36,665/- has been confirmed under the category of ‘Maintenance and Repair service’ for the period July 2003 to March 2006 alongwith applicable interest. The learned Commissioner has refrained from passing any order with regard to the proposal made in the Show Cause Notice dated 29.10.2007 for imposition of penalty on the ground that appeal filed by the Department before the Hon’ble Gauhati High Court was pending to the extent of the order whereby penalty was dropped in the previous adjudication Order dated 22.02.2008 passed by the then learned Commissioner.

2. Briefly stated, the facts of the case are that Show Cause Notice dated 29.10.2007 (SCN) was issued to the assessee, M/s.Dewanchand Ramasaran Industries Pvt Ltd. which was previously adjudicated vide the Order dated 22.02.2008 whereby the demand of Service Tax as proposed in the SCN was confirmed alongwith interest, however, the entire penalty was dropped by invoking Section 80 of the Finance Act,1994 (the Act). Both assessee and Department preferred appeals before the Tribunal. Appeal No. ST-81/2008 filed by Department was rejected on the very ground of maintainability holding that the Review Order passed by the Review Committee lacked jurisdiction. The assessee’s appeal No. ST-88/2008 was allowed by way of remand with the direction that the documents which were relied against the assessee be provided to them and a reasoned order be passed in a time bound manner afresh by providing adequate opportunity of being heard.

The Department preferred an appeal before the Hon’ble Gauhati High Court against the rejection of Department’s appeal by the Tribunal pertaining to setting aside of the penalty amount. The High Court vide Order dated 04.06.2010 rejected the appeal filed by the Department upholding the order of the Tribunal with the finding that the very constitution of Review Committee was a nullity and hence,the appeal filed by the Department against the Commissioner’s Order was not proper. Against the said High Court’s order, the Department has further preferred an appeal before the Apex Court which is pending as on date. However, there is no stay of the operation of High Court’s order as on date.

3. Shri R. G. Sheth, learned Advocate appeared for the assessee and Shri S.S.Chattopadhyay, learned Authorized Representative appeared for the Revenue.

4. The learned Advocate for the assessee has made detailed submissions challenging the impugned order dated 25.03.2009 passed ex parte, both on merits as well as on the ground of violation of principles of natural justice for want of effective hearing inasmuch as the learned Commissioner has failed to provide the contents of report dated 23.02.2008. He inter alia submitted that the portion of the earlier adjudication order dated 22.02.2008 whereby the entire penalty was dropped by invocation of Section 80 of the Act has attained finality since the Department’s appeal has been dismissed both by the Tribunal and the Hon’ble High Court. For the aforesaid reason, there cannot be any occasion to hold that there was suppression on the part of the assessee and therefore, the entire demand confirmed by invoking extended period of limitation is liable to be quashed.

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