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M/s Patron Detective and Security Services Versus Commissioner of Central Excise and Service Tax, Jaipur-I, NCRB

2017 (11) TMI 342 - RAJASTHAN HIGH COURT

Principles of Natural Justice - Whether non supply of resumed records which are relied upon in SCN and adjudication order constitute violation of principles of natural justice, when not provided in spite of preliminary objections and request letters? - Whether onus of proving classification was on the part of appellant when all the resumed and relied upon documents were not supplied to him in spite of repeated requests? - Held that: - It is well settled principle of law that the person who i .....

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e. - The matter is remitted to the first authority. The petitioner will appear before the first authority on 06.11.2017 and authority will settle the matter within a period of four weeks - appeal allowed by way of remand. - D. B. Central/Excise Appeal No. 5 / 2014 - Dated:- 11-10-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Sameer Jain with Mr. Daksh Pareek For the Respondent : Mr. Siddharth Ranka with Mr. Saurabh Harsh JUDGMENT 1. By way of this appeal, the appella .....

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uest letters? (2) Whether onus of proving classification was on the part of appellant when all the resumed and relied upon documents were not supplied to him in spite of repeated requests? 3. Learned counsel for appellant has pointed out that the resumption memo prepared on 20.12.2003 and he contended that when reply was filed a specific contention was raised in the reply to the show cause notice that the documents dated 15.01.2004 were not supplied and those have been considered by the authorit .....

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ents which were referred in the notice, have been supplied to him but nothing on documents which sought to be relied upon, had been made by the authority, it has been observed as under:- I find that the taxable value on which service tax of ₹ 2,59,116/-from Oct. 1998 top Dec. 2001 was not paid by the assessee was worked out on the basis of the records resumed during the search hence the request of the assessee for copies of the relied upon documents is merely play to delay the adjudication .....

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issuance of show cause notice is five years instead of one year. 5. The same contention was also raised before the Commissioner (Appeals) and also before the CESTAT. But nothing has come on record to establish that the documents which was relied upon and referred in order were supplied to the assessee. 6. However, Mr. Ranka has stated that the documents which have referred in the resumption memo are only receipt, register and the bill books and no other important documents are seized and he has .....

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was not proper and he was not allowed the natural right of presence of his assistant/counsel etc. Tyhe copy of statement supplied bears information available and he has concealed nothing nor suppressed any information. It is right of the Department to question the assessee and so is the assessee having a right to get his answer properly recorded in the statement. The assessee should not be penalized for the privilege of getting his answere recorded properly. They requested that no penaly be impo .....

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30/45/2009/3251 dated 25.02.2010. However, Mr. Sameer Jain raised this contention after filing five different replied. The contention raised is afterthought with a view to delay proceedings. Mr. Ranka has also shown that the Tribunal has also not considered the same. 9. We have heard learned counsel for the parties. 10. It is well settled principle of law that the person who is to take an action is required to supply basic documents, which sought to be relied upon. The documents though referred .....

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alled upon it to show cause as to why the petitioner should not be denied the status of an independent processor as defined in the Notification No. 36/98-C.E. (N.T.) and No. 42/98-C.E. (N.T.) both dated 10.12.1998 in view of the allegations made in the show cause notice dated 15.01.1999. After receiving the first show cause notice dated 15.01.1999, during the pendency of earlier petition itself the petitioner had moved applications dated 18.02.1999, 25.02.1999, 08.03.1999, 12.03.1999, 27.03.1999 .....

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not all, the petitioner filed this petition praying for quashing of the show cause notice dated 15.01.1999 and 31.05.1999, restraining the respondent No. 1 from proceeding further with the show cause notice dated 15.01.1999 and 31.05.1999, for a declaration that the Registration Certificate issued to the petitioner is not liable to be revoked and/or suspended and for a declaration that the petitioner company was an independent processor within the meaning of notifications 36/98 and 42/98 both d .....

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uestion therefore which remains to be answered is whether the petitioner can insist on supply of an authenticated copy of a document or an opportunity to inspect the document and if desired obtain a photo copy thereof would serve the ends of justice and meet the requirements of principles of natural justice. 12. The Single Bench decision of the Karnataka High Court in Reletronics Ltd. (supra) is not on the question as to whether inspection would be a proper substitute for supply of copies. Howev .....

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irected the Department of the Union of India to make available to the assessee concerned copies of all documents and records relied upon by the department. Again in this case, the question whether inspection would be a proper substitute for supply of copies was not before the Court. The learned Counsel for the petitioner has also relied on the decision of the Customs, Excise and Gold (Control) Appellate Tribunal in Jayantilal A. Shah and Am. v. Commr. of Central Excise, Mumbai VI [1999 (34) RLT .....

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