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TMI Blog2024 (5) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Subrata Mukherjee in M.A.T. 1269 of 2023. For the CGST Authority : Mr. K.K. Maiti Mr. Tapan Bhanja. For the Union of India : Mr. Vipul Kundalia Mr. Amit Sharma Mr. Tilak Mitra Ms. Debjani Ghosal. For he KMC : Mr. Ashoke Kr. Banerjee, Sr. Adv. Mr. Biswajit Mukherjee Mr. Avra Majumdar Mr. Arijit De. For he KMC For the State : Mr. Anirban Ray, Ld. GP Mr. T.M. Siddique Mr. Tanoy Chakraborty Mr. S. Sanyal. JUDGMENT (T.S. SIVAGNANAM, C.J.) 1. This is the second time, the three assessees are before this Court on the self-same issue. Earlier, the assessees had filed three appeals before this Court in APOT 155 of 2017, APOT 192 of 2019 and APOT 35 of 2020 contending that the demand for service tax on the assessees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. As soon as the adjudication is completed, the appellants as well as the department shall intimate the tribunal and the tribunal shall also consider impleading the KMC as a party to the proceedings in the said case so as to avoid multiplicity of proceedings. Considering the peculiar facts and circumstances of the case, we are of the view that no coercive action shall be initiated against the appellants till the adjudication is complete. 11. We make it clear that we have noted the submissions of the appellant as well as the stand taken by the KMC in this judgment and order for the purpose of moulding relief to be granted herein and we have not decided the legal issue which is left open to be decided by the concerned adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the assessee and whether in their view, these services are exempted from service tax. We find that the show-cause notice is not in full compliance with the directions issued by this Court since in the said decision in paragraph 9, the Court has observed that the assessees stand, apart from other things is that the service tax component, which is remitted by them as service provider has to be reimbursed by the recipient KMC. In the light of the said stand taken, the Court opined that unless and until the adjudication is done by impleading the KMC, it will not be binding adjudication and therefore, the aforementioned direction was issued. Therefore, for all practical purposes, the show-cause notice should have clearly mentioned that KMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court came to the definite conclusion that KMC should be made a party to the adjudication process. Therefore, either parties are entitled to the copies of the replies submitted by them as well as any written submission including the documents, which are filed as annexure to the replies. This aspect of the matter has been lost sight of by the adjudicating authority. The adjudicating authority in paragraph 50 of the adjudication order holds that the views of the KMC In Circular No. 83 of 2013-14 dated 04.01.2014 regarding the taxability of the services received by them from Noticee No. 1 and the applicability of exemption from Service Tax on these Taxable services, are not in consonance with the legal provisions prevailing at the material ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese essentially involves adjudication into facts, which cannot be done in exercise of jurisdiction under Article 226 of the Constitution of India solely based upon affidavits. Therefore, the matter has to necessarily go back to the adjudicating authority for fresh consideration. 11. For the above reasons, the appeals are allowed, the orders in original dated 5th December, 2022/7th December, 2022/ 8th December, 2022 are set aside and the matters are remanded back to the adjudicating authority for a fresh decision. 12. The adjudicating authority is directed to furnish copies of the replies/written submissions/documents and details submitted by KMC in response to the show-cause notices dated 5th August, 2022 within a period of three weeks f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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