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M/s Mittal Construction Co. Versus Commissioner of Central Excise, Central Excise House, Ludhiana, Punjab

2016 (4) TMI 1113 - PUNJAB AND HARYANA HIGH COURT

Validity of order passed ex-parte - Violation of principles of natural justice - Demand of Service tax - Invokation of extended period of limitation - Appellant provided services of protection, pipe laying using trenching/trenchless, reinstatement of trench, OFC cable blowing including other associated works to its clients - Appellant contended that it had carried out substantial part of work prior to levy of service tax and thus, there was no question of levy of tax on services rendered prior t .....

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ts case was not afforded to the appellant before passing the impugned orders. Thus, there was violation of the principles of natural justice. - Appeal disposed of by remanding the matter back - STA No. 34 of 2015 (O&M) and C.M. No. 25190 CII of 2015 - Dated:- 24-2-2016 - MR. AJAY KUMAR MITTAL AND MRS. RAJ RAHUL GARG, JJ. For The Appellant : Mr. Jagmohan Bansal, Advocate For The Respondent : Mr. Sukhdev Sharma, Advocate Ajay Kumar Mittal,J. CM No.25190 CII of 2015 1. This is an application under .....

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d application was listed before the Tribunal on 7.9.2015. The appellant through its counsel appeared. The Tribunal dismissed the application. Thus, there was a delay of 302 days in filing the appeal against the order dated 23.7.2014. 2. Notice of the application was given to the respondent. For the reasons stated in the application and after hearing learned counsel for the parties, the delay of 302 days in filing the appeal is condoned. CM stands disposed of. STA No.34 of 2015 3. This appeal has .....

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decision of the controversy involved as narrated in the appeal may be noticed. The appellantassessee is engaged in providing various services including site formation and clearance services. The assessee got itself registered with the department w.e.f 7.2.2006 for providing services of site formation. During the course of audit, the respondent observed that the appellant had provided services of protection, pipe laying using trenching/trenchless, reinstatement of trench, OFC cable blowing inclu .....

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uld not be demanded and recovered invoking the extended period of limitation. The appellant filed reply to the show cause notice inter alia pleading that it had carried out substantial part of work prior to levy of service tax and thus, there was no question of levy of tax on services rendered prior to date of levy of tax. The adjudicating authority did not accept the submissions of the appellant and confirmed the demand of service tax amounting to ₹ 34,85,329/- alongwith interest and impo .....

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. According to the appellant, service tax was payable on the amount actually received. It was further submitted that the appellant had not carried out the work of horizontal drilling for the passage of cables or drain pipes. Thus, the case of the appellant was covered by clarification dated 27.7.2005 issued by the Board. The appeal of the appellant came up for hearing before the Commissioner (Appeals) on 3.9.2008. Learned counsel for the appellant appeared and made submissions. The Commissioner .....

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he Tribunal against the order dated 30.9.2008, Annexure A.3 passed by the Commissioner (Appeals) on the ground that the services of the appellant did fall under clause (iii) of Section 65(97a) of the Act. The appeal was filed in the year 2009. Due to huge pendency before the Tribunal, the appeal came up for hearing before the Tribunal on 23.7.2014. The appellant or its counsel due to non receipt of notice of hearing could not appear. No fresh notice was issued to the appellant. The Tribunal afte .....

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engaged Shri Kamal Jeet Singh, Advocate as its counsel who in the absence of receipt of hearing notice failed to appear before the Tribunal. The said application came up for hearing before the Tribunal on 7.9.2015 though it was filed in October 2014. The Tribunal vide order dated 7.9.2015, Annexure A.7 dismissed the application on the ground that notice was dispatched on the address furnished in the memo of appeal which was a correct address. Hence the instant appeal by the appellant-assessee. .....

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te vide order dated 23.7.2014, Annexure A.5. Even the recalling application was filed in October 2014 by the appellant whereas the same came up for hearing before the Tribunal on 7.9.2015. Therefore, sufficient opportunity to represent its case was not afforded to the appellant before passing the impugned orders. Thus, there was violation of the principles of natural justice. 7. The Hon'ble Apex Court in Canara Bank v. V.K. Awasthy AIR 2005 SC 2090 while dealing with the doctrine of principl .....

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law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 9. The expressions natural justice'' and legal justice'' do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, gr .....

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are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes who .....

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