NIRAV TRAVELS Vs. COMMISSIONER OF CENTRAL EXCISE, VADODARA

JUDGEMENT

(1.) IN this case, the Service tax of Rs. 62,063/ - (Rupees Sixty Two Thousands, Sixty Three only) has been demanded in respect of Business Auxiliary Service rendered by the appellant during the year 2003 -2004. The show cause notice was issued on 1 -4 -2008, invoking suppression of facts. Consequent to proceedings, appellant has been held liable to pay service tax with interest. Penalties under Sections 77 and 78 have been imposed.

(2.) LD . Counsel for the appellant submitted that in this case, the Commissioner (Appeals), in impugned order, has rejected the appeal on the ground that all submissions made by the appellant cannot be admitted because no evidence was produced before original adjudicating authority and in terms of Rule 5 of Central Excise (Appeals) Rules, 2001, no additional evidence, oral or documentary can be submitted before Commissioner (Appeals) if the same had not been produced before original adjudicating authority. He submits that this Rule has been wrongly applied by Commissioner. This Rule applies only when some oral or documentary evidence has been produced before original adjudicating authority and in this case, since no evidence either oral or documentary has been produced, this Rule is not applicable and therefore, the Commissioner (Appeals) was not correct in rejecting the appeal. Further, he also submitted that the show cause notice was issued on the basis of balance sheet and Profit and Loss account and during the year 2003 -2004, the appellant did not have a single vehicle in his possession and therefore he had a bona fide belief that he was not liable to pay service tax. He requested that the matter may be remanded to original adjudicating authority so that appellant will be able to produce the evidence and seek justice.

(3.) LD . AR, on the other hand, submits that besides issuing 2 show cause notices, 2 letters were sent to the appellant for replying to the show cause notice, which the appellant did not bother to reply. Further, two opportunities were given for appearing before original adjudicating authority, which were also not utilized. He submits that the appeal has been correctly rejected and since the appellant did not defend his case, the stay petitions may be rejected. He also submits that the appeal itself can be rejected. Further, he also submits that the submissions of the ld. Counsel that what is being produced before Tribunal or Commissioner (Appeals), is not additional evidences, is not correct. When evidence is not produced before original adjudicating authority, it has to be taken as zero and therefore whatever is produced subsequently, becomes additional. Therefore, the impugned order is in accordance with law.