TMI Blog2006 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... -1-2006 issued by the Commissioner of Service Tax, Bangalore. 2. The brief facts are as follows:- The appellant is engaged in the business of International Courier. They are registered with the Excise Department under the category of 'Courier Agency'. In addition to Courier business, they undertake transshipment of commercial cargo through Air, which is known as 'International Freight'. They were of the opinion that International Freight service is not a taxable service under the Courier Agency service category in terms of Section 65(105)(f) of the Finance Act, 1994. However, they represented to the Commissioner of Central Excise vide their letter dated 20-3-2002 for a clarification on the applicability of Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the above section, any assessee aggrieved inter alia by an order passed by a Commissioner of Central Excise under Section 73 or Section 84 of the Act may appeal to the Appellate Tribunal against such order. The appellant submits that the impugned order dated 9-1-2006 is nothing but an 'order' as envisaged under Section 86 of the Act and, therefore, the same is appealable before the Tribunal. (iii) The order has been issued contrary to Section 84, having been passed without giving an opportunity and holding an enquiry in the manner required by law, and hence, the order is in gross violation of justice, equity, good conscience and fair play. (iv) According to Black's Law Dictionary, the expression 'order' mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Service Tax liability during the period involved immediately. It is therefore, submitted that the impugned communication dated 9-1-2006 has adversely and manifestly faulted the interest in law of the appellant and has the effect of saddling the appellant with tax liability when there was none. (ix) In terms of Supreme Court decision in Lala Shri Bhagwan Anr. v. Ram Chand Anr - AIR 1965 SC 1767, the authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of the citizens, may be required to act judicially. (x) Assuming that the impugned order is not under Section 84 or under Section 73 as it stood during the relevant period providing for demand of tax on the value of taxable services es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xiii) The respondent should have afforded an opportunity of hearing and of making a representation and should have issued a Show Cause Notice before taking any decision on the earlier letter dated 23-12-2004, which has retrospectively created a liability. It is, therefore, submitted that the impugned order has seriously prejudiced the right, liability and position of the appellant. The order violates the principles as held in Travancore Rayons v. UOI - 1978 (2) E.L.T. J378 (S.C.); Siemens Engg. Mfg. Co. Limited v. UOI Anr - AIR 1976 SC 1785, East India Commercial Co. Ltd. v. CC - 1983 (13) E.L.T. 1342 (S.C.). 4.On behalf of the Revenue, it was stated that under Section 86 of the Finance Act, 1994, an appeal can be filed if a person i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment made its mind very clear, the appellant did not discharge service tax liability on the activity of International Freight. Neither did they collect the same from the customers. If this position is to be altered, then the course open to the Commissioner is to follow the procedure outlined in Section 84 of the Finance Act, 1994. In terms of Section 84, the Commissioner may call for the record of a proceeding, which has been taken by AC or DC subordinate to him and pass suitable order. In any case, such an order cannot be passed without giving an opportunity to the assessee of being heard. This is as per Section 84(2). In the present case, the decision communicated in the letter dated 23-12-2004 has been held to be ab initio void and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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