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In Re : Bharat Sanchar Nigam Ltd.

2015 (3) TMI 1125 - COMMISSIONER (APPEALS) OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, RAIPUR

Corrigendum to show cause notice - Denial of natural justice - Entitlement for the Cenvat credit - as in the show cause notice, the charge of suppression of facts from the department thereby invoking the larger period of limitation - Held that:- It is observed and so contended by the appellant that the adjudicating authority has issued Corrigendum dated 22-1-2014 to the aforesaid show cause notice, wherein the period covered in the impugned show cause notice was amended to 04/2012 to 03/2013, af .....

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In either scenario, the principle of natural justice has been violated by the adjudicating authority as order has been passed without considering defence after issuance of ‘Corrigendum’.

In the case of Penguin Electronics (P) Ltd. v. Commissioner of C. Ex., Mumbai-II [2005 (3) TMI 529 - CESTAT, MUMBAI ], the Hon’ble Tribunal has held that the issue of corrigendum to show cause notice after personal hearing is not valid. Thus the impugned order is annulled so far as it relates to the .....

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erred to as the Appellant ) has filed an appeal on 2-6-2014, along with an application for waiver from pre-deposit against Order-in-Original No. 09-11/DEM/DC/14-15, dated 6-5-2014 issued by the Deputy Commissioner, Customs, Central Excise & Service Tax Division, Jabalpur (M.P.) (hereinafter referred to as the Adjudicating Authority ) disputing the following issues decided in the impugned order : (i) Denial of Cenvat credit of service tax of ₹ 4,72,454/- and recovery thereof, along with .....

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SCN and subsequent issue of SCN which are not permitted under the law, all the above makes the entire order unwarranted and bad in law; that the appellant is a Govt. of India PSU and never have any intent to evade any duty or defraud Govt. Revenue. 3. The grounds of appeal stated in the appeal memo, submission made on 9-7-2014 and 26-2-2015 are as follows : (i) That the impugned Order passed by the adjudicating authority devoid of justice & perverse both on law & facts. (ii) That th .....

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n in the impugned order that for the sake of brevity, a common order has been passed. (v) That the adjudicating authority committed serious error of law in issuing subsequent show cause notice in the name of corrigendum which permitted in law only mistake in nature of typographical can only be corrected but subsequent SCN cannot be issued. (vi) That the adjudicating authority abuses the power delegated under while issuing subsequent show cause notice changing the period and charges levelled in t .....

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ell known to the revenue and the appellant filed excise returns showing the input credit. They placed on the decision delivered in the case of CCE, Nagpur v. Ultratech Cement Ltd. [(2010) 1 taxman.com 495], CCE, Vadodra v. Lear Automotive India Ltd. [(2013) 30 taxmann.com 178], Polylink Polymers (P) Ltd. v. CCE (AhmEdabad) [2014 taxman.com 216] and BASF India Ltd. v. CCE, Manglore [2012 (26) taxmn.com 20], Coca Cola India Pvt. Ltd. v. CCE, Pune [2015 (37) S.T.R. 768 (Tri. - Mum.)], CCE v. Monsan .....

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y irregular Cenvat credit but the same has been availed properly and there is neither any infirmity nor pointed out by Range Officer in statutory returns. The appellant therefore requested to set aside the impugned order. 4. Personal hearing was attended by Shri Kamal Khemuka, Advocate on behalf of the appellant on 26-2-2015, wherein the contentions made in appeal memorandum were reiterated. The respondent has neither filed any cross-objection nor appeared for personal hearing and explained .....

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unt covered by the show cause notice decided by the impugned order is as below : Sr. No. SCN No. & Date Period Amount (Rs.) 1 V(73)03-26/DEM/13-14/6510, dated 3-9-2013 08/2008 to 03/2013 (amended to April, 2012-March, 2013 vide Corrigendum dated 22-1-2014) 4,72,454/- 8. I find that the issues involved in the aforesaid show cause notice are wrong availment of Cenvat credit of service tax availed on (i) security and cleaning services provided in the Officer s Bangalow and residential colo .....

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period covered in the impugned show cause notice was amended to 04/2012 to 03/2013, after 4-12-2013 referred to in Para 9 of the impugned Order, as the date, on which personal hearing was held. Since there is neither any reference in the impugned Order of any personal hearing being held after issuance of Corrigendum nor the department has made any submission in this regard, it is concluded that either no personal hearing was held on 5-3-2014 and even if same was held, the submissions made there .....

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not valid. The relevant Para 3(e) of this decision is reproduced below : Para 3(e) : In the facts and circumstance of this case we find that a prima facie case has been made out to come to conclusion that the principles of natural justice have been violated by the adjudicator and the decision impugned herein as arrived is required to be set aside with directions that the notices should be heard and defence reply/materials considered and thereafter a finding arrived on the issues involved in thi .....

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(6) S.T.R. 255 (Tri. - Del.)], the Hon ble CESTAT has held as under : 4. From the above observations, it is clear that when the corrigendum incorporating the changes in the Finance Act were sent to the appellants on 3-11-2004, as an amendment to the show cause notice dated 28-9-2001, the appellants were not given further opportunities to appear in person and defend their case before the adjudicating authority. We, therefore, consider this as a serious lapse in the adjudication proceedings a .....

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