COMMISSIONER OF CENTRAL EXCISE Vs. VIJAYA CONSULTANTS

JUDGEMENT

(1.) THIS Central Excise Appeal under Section 35G of the Central Excise Act, 1944 as substituted by the Finance Act, 2003 (for brevity "the Act") is filed at the instance of the Department against the Final Order No. 558/2007, dated 08.05.2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short "CESTAT") by raising the following questions of law for adjudication.

(2.) THE respondent is a partnership firm consisting of a Diploma holder, a Graduate in Arts and one Mechanical Engineer. The respondent approached the Department seeking for issuance of Form ST -1 for registration in the category of Technocrats -Technical Consultancy under Section 69 of the Finance Act, 1994. The Superintendent, Technical from the Office of the Deputy Commissioner of Central Excise, Vijayawada Division issuing a reply stating that respondent -firm could not be given registration as a scientific or technical consultancy services and suggested that their services would fall under the category of Consulting Engineer. The superintendent also advised the respondent to obtain registration as a consulting engineer for the services under the category of "Consulting Engineer". In their anxiety, the respondent tried to justify with the authorities how their services cannot be termed as Consulting Engineer. The Deputy Commissioner of Customs and Central Excise issued an order to the respondent demanding service tax for the period from 07.07.1997 to 30.06.2001. The appeal before the Commissioner of Customs and Central Excise challenging the order of the Deputy Commissioner ended up in dismissal confirming the order of the Deputy Commissioner. The CESTAT, on consideration of the arguments of the respondent and perusal of the record, found that the respondent was never issued a show cause notice as required under Section 73 of the Finance Act, 1994 which came into effect from 16.10.1998. Section 73(1)(a)(b) and 2 of the Act reads as under:

(3.) ON the other hand, the learned counsel for the respondent submits that there is a categorical finding of the Tribunal that there was fundamental breach of compliance of the statutory provision which is the basic requirement to initiate the very proceedings under the statutory provisions of Service Tax and the Rules and procedural Regulations made therein, as such, the order of the Tribunal is unassailable and does not call for any interference by this Court.