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2023 (6) TMI 1249 - HC - Service TaxPrinciples of natural justice - proper application of mind by adjudicating authority or not - Levy of service tax - Business Auxiliary Service - Retention of Freight - service charges, for services provided by the petitioner to its client for transportation of goods by the airlines - HELD THAT:- It appears to be quite peculiar that initially the adjudication of the show cause notices was taken up by respondent no. 3, however, in view of the order passed by respondent no. 5, the same was transferred/assigned to respondent No. 2, as the incumbent who was earlier holding the post of respondent no. 3-Commissioner of CGST, during the pendency of adjudication of the show cause notices, was promoted to the post of Principal Commissioner. It also appears that the additional written submissions, which were quite material on law and facts, were in fact placed on record by the petitioner inadvertently before respondent no. 3, hence, the same could not be taken into consideration by respondent No. 2 when he passed the impugned orders. Thus certainly on such premise, there was a prejudice which was suffered by the petitioner in non-consideration of such submissions. Any breach of the principles of natural justice would be required to be attributed as an incurable defect qua the impugned order. It would be appropriate in the facts and circumstances of the present case that respondent No. 2 takes a holistic view of the matter considering the decision of the tribunal in EMU Lines Pvt. Ltd. vs. Commissioner of CGST and Central Excise, Belapur [2023 (6) TMI 64 - CESTAT MUMBAI], which considers a prior decision of the tribunal in Greenwich Meridian Logistics (I) Pvt. Ltd. [2016 (4) TMI 547 - CESTAT MUMBAI]. On a perusal of the impugned order, it appears that such decision has not been considered. Respondent No. 2 needs to hear the petitioner afresh on the show cause notices, and after taking into consideration the facts of the case - the impugned order dated 29 May, 2019 passed by respondent No. 2 is required to be quashed and set aside relegating the petitioner to the jurisdictional Commissioner as may be intimated by the respondents to the petitioner at least two weeks in advance, for an appropriate order to be passed in accordance with law - Petition allowed.
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