(1.) TWO applications filed by the appellant are before us. The applicant (appellant) is the Coir Board, who has obtained the requisite clearance from the Committee of Secretaries to pursue the appeal. In a Show -Cause Notice dated 20 -5 -2002, the Deputy Commissioner had proposed to levy service tax from the Coir Board for the period from September 1999 to March 2002 in respect of what was referred to as "clearing and forwarding agent's service" which was allegedly rendered to various small scale manufacturers of coir products. The Show -Cause Notice did not demand any quantified amount of service tax. It only proposed to determine the taxable value of the above service by the best judgment method as also to levy interest on service tax under Section 75 of the Finance Act, 1994, besides imposing penalties on the notice under Sections 75A, 76 and 77 of the Act. After considering the reply to the show -cause notice and hearing the party, the Deputy Commissioner dropped all the proposals. Subsequently, the Commissioner, in his revisionary jurisdiction, called for the records and, after examining them, wanted to revise the Deputy Commissioner's order. After giving the party an opportunity of being heard, the Commissioner passed the impugned order, wherein he directed that the value of all taxable services rendered by the Coir Board be determined under the best of judgment to be worked out by the jurisdictional Assistant/Deputy Commissioner and the amount of tax be quantified accordingly. The Commissioner also held the assessee liable to pay interest on tax and also to pay penalties. The penalties imposed by the Commissioner, included one under Section 78 of the Act also. Subsequently, by a corrigendum, 'Section 78' was replaced with 'Section 76' without notice to the assessee.
(2.) WE have heard the learned DR also. He has not been able to successfully counter the jurisdictional issue raised by the learned Consultant. His only submission is that the Chief Commissioner had authorized the Commissioner of Central Excise and Customs, Trivandrum to discharge the functions of the Commissioner of Central Excise and Customs, Cochin in the absence of the latter. The learned DR has not cited any notification issued under Section 4 or 5 of the Customs Act, 1962, to enable the Commissioner of Central Excise and Customs, Trivandrum to exercise revisionary jurisdiction in respect of a matter which falls within the jurisdiction of the Commissioner of Central Excise and Customs, Cochin.
(3.) AFTER considering the submissions made by both sides, we take judicial notice of the fact that it is customary for the Commissioners of Central Excise to issue show -cause notices before passing revisionary orders under Section 84 of the Act. This Commissioner, however, did not issue any such notice to the appellant. We further note that the very complexion of the penalty imposed on the assessee was changed by the Commissioner when he substituted 'Section 76' for 'Section 78' and, that too, without notice to the party. Thus we come across many an infirmity in the proceedings of the Commissioner. We have no choice except to grant the relief of stay prayed for by the appellant. The stay application (1/2005) stands allowed.