TMI Blog2022 (9) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the fact that it appears that the principles of natural justice have not been followed. Hon'ble High Court of Gujarat at Ahmedabad in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED [ 2014 (4) TMI 406 - GUJARAT HIGH COURT] has given its verdict as to whether the Commissioner (Appeals) exercising powers under Section 85 of the Finance Act, 1994 has the power to remand the proceedings back to the adjudicating authority. This is fit case to remand the matter to the Authority for Advance Ruling i.e. the GAAR in the present case for fresh decision. The GAAR will take into consideration all aspects of the matter and decide the case afresh after affording adequate opportunity of hearing to the appellant - appeal allowed by way of remand. - GUJ/GAAAR/APPEAL/2022/16 - - - Dated:- 22-8-2022 - MILIND TORAWANE AND VIVEK RANJAN, MEMBER Present for the appellant : Shri Priyam Shah (CA) At the outset we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act, 2017' and the GGST Act, 2017') are in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant, the examination is conducted by the University on the basis of question papers set with the help of the appellant and on the basis of internal marks allotted by the appellant as well as evaluation made by the appellant of practical/project reports submitted by the student alongwith marks obtained by the students in final exams, the University is granting degree to the students. The appellant attached MOU and Agreement with University in support of their contentions. 5. The Gujarat Authority for Advance Ruling (herein after referred to as 'the GAAR ), vide Advance Ruling No. GUJ/GAAR/R/75/2020 dated 17.09.2020, inter-alia observed that the appellant is an educational consultant and a professional in the fields of Computer Animation, IT-Infrastructure Management System and Mobile Computing Application Education which uses their experience and knowledge in teaching, to help with curriculum development and other issues to Gujarat University. The appellant does not have any specific curriculum and does not conduct any examination or award any qualification/ degree. Hence, the appellant does not qualify as educational institution. GAAR concluded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the appellant was informed that the next date of hearing would be on 31.08.2020. That on 24.08.2020 the appellant informed the authority for advance ruling through email that they were in process of withdrawing their application for advance ruling. That on 25.08.2020 they submitted hard copy of their application to the authority for advance ruling informing that they were willingly withdrawing their application dated 24.07.2019 and requested to pass the order for withdrawal. That on 17.09.2020 the authority for advance ruling passed order without considering their request for withdrawal of the application. The authority also did not give any findings to their application for withdrawal. The said order was received by the appellant on 03.10.2020. The order was passed without hearing the appellant and therefore the same amounts to violation of principles of natural justice. FINDINGS :- 8. We have carefully gone through and considered the appeal and written submissions filed by the appellant, submissions made at the time of personal hearing, Advance Ruling given by the GAAR and other material available on record. 9. Before going into the merits of the case, we find i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, the applicant or the appellant within a period of six months from the date of the order: 'Provided that no rectification which has the effect of enhancing the tax liability or reducing the amount of admissible input tax credit shall be made unless the applicant or the appellant has been given an opportunity of being heard. We find that the appellant has filed the application within six months of order passed by the GAAR as required under the provisions of Section 102 referred above. However GAAR did not pass any order on the appellant's application. 10.1 We find that the appellant for the first time has raised additional plea before this appellate authority that their services are exempted as they are also covered by Entry No.3 of Notification No.12/2017-Central Tax dated 28.06.2017. This plea has been raised for the first time before this authority and the same was never raised before the GAAR. 10.2 From the above we find that the issues mentioned above need to be re-examined at the level of GAAR, in view of the fact that it appears that the principles of natural justice have not been followed. 10.3 In this regard we would like to rely upon the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. For example, if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. This would create an anomaly and cause prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. 11. In view of the above discussion we find it fit to remand the matter to the Authority for Advance Ruling i.e. the GAAR in the present case for fresh decision. The GAAR will take into consideration all aspects of the matter and decide the case afresh after affording adequate opportunity of hearing to the appellant. 12. In view of the foregoing, the case is remanded back to the Gujarat Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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