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TMI Blog2012 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax with interest. Penalties under Sections 77 and 78 have been imposed. 2. Ld. Counsel for the appellant submitted that in this case, the Commissioner (Appeals), in impugned order, has rejected the appeal on the ground that all submissions made by the appellant cannot be admitted because no evidence was produced before original adjudicating authority and in terms of Rule 5 of Central Excise (Appeals) Rules, 2001, no additional evidence, oral or documentary can be submitted before Commissioner (Appeals) if the same had not been produced before original adjudicating authority. He submits that this Rule has been wrongly applied by Commissioner. This Rule applies only when some oral or documentary evidence has been produced befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver is produced subsequently, becomes additional. Therefore, the impugned order is in accordance with law. 4. I have considered the submissions made by both sides. There is no decision on merit either by original adjudicating authority or Commissioner (Appeals). Instead of deciding the issue of pre-deposit or stay, I consider it appropriate that the matter should be decided finally. Accordingly, after waiving the pre-deposit, the appeal is taken up for final disposal. Ld. Commissioner (Appeals) has rejected the appeal relying upon the Rule 5 of Central Excise (Appeals) Rules, 2001. Rule is as under : "Rule 5: Production of additional evidence before Commissioner (Appeals) :- (1) The appellant shall not be entitled to produce before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his rule shall affect the power of the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal." 5. Ld. Counsel submitted that the Rule 5 only bars production of additional evidences. In this case, the appellant had not replied to the show cause notice nor appeared for personal hearing and therefore it cannot be said that what was being produced before Commissioner (Appeals) was additional evidence. 6. I find considerable force in this argument. But, the interpretation given by the ld. Counsel would result in a situation where the person does not reply to show cause notice or does not appear for personal hearing and does not bother to reply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any document or the examination of any witness or the adducing of any evidence under sub-rule (1) may be done either before the Tribunal or before such departmental authority as the Tribunal may direct. (3) Where any direction has been made by the Tribunal to produce any documents or to examine any witnesses or to adduce any evidence before any departmental authority, the authority shall comply with the directions of the Tribunal and after such compliance send the documents, the record of the deposition of the witnesses or the record of evidence adduced, to the Tribunal. (4) The Tribunal may, of its own motion, call for any documents or summon any witnesses on points at issue, if it considers necessary to meet the ends of jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax provisions. It was also submitted that before both the lower authorities as well as Commissioner (Appeals), the appellant had not taken legal assistance and mistakes have occurred. Having regard to the facts that the appellant had taken registration in May 2004 and the fact that it did not own any vehicle in 2004-2005, there is a possibility that he could have entertained a bona fide belief about the liability of service tax and in view of the fact that no evidence was produced before original adjudicating authority and Commissioner (Appeals) did not allow them to produce any evidence, I consider that it is a fit case for exercising the discretion to give an opportunity to the appellant to produce evidence afresh. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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