TMI Blog2012 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... able opportunity to the appellant to produce the evidence - ST/145/2011 - A/1794/2011-WZB/AHD - Dated:- 3-10-2011 - Shri B.S.V. Murthy, J. REPRESENTED BY : Shri Vinay Kansara, Advocate, for the Appellant. Shri R. Srova, JDR, for the Respondent. [Order]. In this case, the Service tax of Rs. 62,063/- (Rupees Sixty Two Thousands, Sixty Three only) has been demanded in respect of Business Auxiliary Service rendered by the appellant during the year 2003-2004. The show cause notice was issued on 1-4-2008, invoking suppression of facts. Consequent to proceedings, appellant has been held liable to pay service tax with interest. Penalties under Sections 77 and 78 have been imposed. 2. Ld. Counsel for the appellant submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, two opportunities were given for appearing before original adjudicating authority, which were also not utilized. He submits that the appeal has been correctly rejected and since the appellant did not defend his case, the stay petitions may be rejected. He also submits that the appeal itself can be rejected. Further, he also submits that the submissions of the ld. Counsel that what is being produced before Tribunal or Commissioner (Appeals), is not additional evidences, is not correct. When evidence is not produced before original adjudicating authority, it has to be taken as zero and therefore whatever is produced subsequently, becomes additional. Therefore, the impugned order is in accordance with law. 4. I have considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the Commissioner (Appeals) records in writing the reasons for its admission. (3) The Commissioner (Appeals) shall not take any evidence produced under sub-rule (1) unless the adjudicating authority or an officer authorised in this behalf by the said authority has been allowed a reasonable opportunity, - (a) to examine the evidence or document or to cross-examine any witness produced by the appellant; or (b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1). (4) Nothing contained in this rule shall affect the power of the Commissioner (Appeals) to direct the production of any document, or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Tribunal, but if the Tribunal is of opinion that any documents should be produced or any witness should be examined or any affidavit should be filed to enable it to pass orders or for any sufficient cause, or if adjudicating authority or the appellate or revisional authority has decided the case without giving sufficient opportunity to any party to adduce evidence on the points specified by them or not specified by them, the Tribunal may, for reasons to be recorded, allow such documents to be produced or witnesses to be examined or affidavits to be filed or such evidence to be adduced. (2) The production of any document or the examination of any witness or the adducing of any evidence under sub-rule (1) may be done either before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 78 of Finance Act, 1994. That being the position, based on the balance sheet and profit loss account relating to the period, more than 4 years later, the appellant was issued a show cause notice without even giving him an opportunity to explain the situation. In my opinion, in this case, the matter should have been investigated and records called for because the law requires that correct amount of service tax liability is required to be worked out before issue of show cause notice. Further, the ld. Counsel also submits that the appellant is a proprietary firm and was not well versed with service tax provisions. It was also submitted that before both the lower authorities as well as Commissioner (Appeals), the appellant had not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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