RECON Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is an application filed seeking waiver of pre -deposit of Service Tax of Rs. 12,56,70,490/ - and equal amount of penalty imposed under Section 78, penalty under Section 76 (not quantified) and Rs. 10,000/ - penalty under Section 77 of the Finance Act, 1994. At the outset, the ld. Advocate Shri Radha Raman for the applicant submits that the Department has issued two show cause notices one on 30 -4 -2010 and the other on 15 -4 -2011 involving the same issue for the same period. He submits that in the first show cause notice, the demand of Rs. 2.29 crores was issued, whereas in the second show cause notice, the total demand for the same period has been Rs. 12.56 crores. He submits that even though the Department has referred to ST -3 Returns of third parties in the show cause notice dated 15 -4 -2011, the same were not supplied to them in spite of the request made on 14 -11 -2011. He submits that no time -frame was set out to reply to the show cause notice dated 15 -4 -2011, however, he has fairly submitted that the applicant has neither responded/replied to the earlier SCN dated 30 -4 -2010. The Ld. Advocate submits that even though they sought time during the course of personal hearing, the same was not granted to them and the order was passed ex parte in gross violation of principle of natural justice. The ld. Advocate submits that as directed by this Tribunal, they procured all work -orders and other documentary evidences, in support of their case which is around in 19 bundles consisting of 2698 sheets. The ld. Advocate however, fairly submits that the demand is highly inflated and in any case, the demand of Rs. 12.56 crores cannot be sustained against them. The ld. Advocate submits that assuming without admitting, approximately the service tax payable by them may come around Rs. 30.00 lakhs. On instruction from the appellant present in the Court, he offers to deposit Rs. 25.00 lakhs and prayed that the case may be remanded to the adjudicating authority for re -consideration of all issues and evidences, which they have now produced before this Tribunal.

(2.) THE ld. AR for the Revenue submits that the first show cause notice was issued to the applicant on the basis of documents that were available to the Department. In the said show cause notice, it has been specifically recorded that in spite of several reminders and summons to the notice, they could not produce the complete data resulting into non -incorporation of entire service tax liability of the applicant, in the demand notice. He submits that subsequently, on receiving the relevant data, the department issued the SCN on 15 -4 -2011, whereby, the correct service tax liability which ought to have been paid by the applicant, had been demanded. It is because of non -cooperative attitude of the applicant, two show cause notices were to be issued to the applicant. He submits that all the enclosures as mentioned in the SCN dated 15 -4 -2011 had been handed over to the appellant. The ld. AR for the Revenue submits that through the letter dated 21 -11 -2011, the applicant had requested for supply of these documents, but it was after conclusion of the personal hearing on 31 -10 -2011. However, the ld. AR has no objection for remanding the case for reconsideration of the issues afresh but he pleads that the applicant be put into terms as it is because of applicant's dilatory attitude the Notices could not be properly adjudicated.

(3.) AFTER hearing both sides, we find that the appeal itself could be disposed off at this stage. Accordingly, with the consent of both sides we take up the appeal for disposal. We find that undisputedly, two show cause notices were issued to the appellant demanding service tax for the same period. The contention of the appellant is that they were not supplied with the relevant documents on which the demand has been calculated in the SCN dated 15 -4 -2011. On the other hand, it is the contention of the Revenue that in spite of repeated summons issued to the applicants, they have not come forward with the data, resulting into issuance of two show cause notices for the same period involving different amount. Prima facie, it cannot be lost sight of the fact that the appellant had not been serious from the date of issuance of the first SCN i.e. on 30th April, 2010 in responding to the allegations of the Department about short payment of service tax. During the course of hearing, before this forum, the ld. Advocate has placed around 19 bundles of documents comprising of contracts/invoices etc. running into around 2600 pages which they failed to produce before the adjudicating authority. Both sides at this stage, agree that the matter be remanded to the adjudicating authority for consideration of the evidences which were not earlier placed before the adjudicating authority. Therefore, in the interest of justice, we are of the view that the case may be remitted to the adjudicating authority for deciding the issue afresh. We also agree with the ld. AR for the Revenue that in remanding the case, the appellant be put into terms. Therefore, considering overall aspects of the case and the interest of Revenue, the offer made by the ld. Advocate for the appellant seems to be reasonable. Accordingly, we direct the appellant to deposit Rs. 25.00 lakhs (Rupees Twenty Five Lakhs only) within eight weeks and report compliance directly to the Commissioner. The ld. Commissioner after recording compliance would proceed with the adjudication. It is directed that all relied upon documents be supplied to the appellant and the appellant in turn would furnish the detailed reply after receiving those relied upon documents from the Department. Both sides agree that a time -frame be fixed for conclusion of the adjudication proceeding. After taking consent of both sides, we are of the view that four months would be reasonable for completion of the adjudication proceeding after recording compliance of pre -deposit of Rs. 25.00 lakhs. In the result the impugned order is set aside and the appeal is allowed by way of remand. S.P. disposed off.