Commr. of Cus., C. Ex. and S.T. vs Narayana Coaching Centre

K.J. Sengupta, C.J.

This appeal is directed against the judgment and order of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore, dated 6th June, 2013 [2015 (39) S.T.R. 33 (Tribunal) ] and sought to be admitted on the following suggested questions of law:

"(a) Whether the Hon''ble CESTAT, Bangalore is justified in relying on the decision in the case of Commissioner of Central Excise, Bangalore Vs. Brindavan Beverages (P) Ltd. and Others, , wherein the appeal was dismissed holding that the allegations in the show cause notice are not specific, vague and lack of details?

(b) Whether the Hon''ble CESTAT, Bangalore, is justified in allowing the appeal on the ground that no show cause notice was issued to the appellant, in fact the show cause notice was received by the assessee during the financial year 2010-11?

(c) Whether the Hon''ble CESTAT is correct in nullifying the Government of India''s explanation for removal of doubts to the already existing provisions of the Finance Act, 1994, by holding that the explanation as retrospective amendment to the Act?

(d) Whether the Hon''ble CESTAT is correct in opining that the demand of Rs. 2,23,16,485/- for the year 2010-11 does not sustain on account of non-issuance of SCN to the appellant, in fact various citations of various judicial flora have been looked into it by the ld. Commissioner, while passing the order-in-original and which can be noted from the paras 27(iii) and 28 of the Adjudication order?

(e) Whether the Hon''ble CESTAT erroneously allowed the stay application staying the recovery of huge amount of dues only on the ground of presumptions and assumptions?

(f) Whether the Hon''ble CESTAT is correct in not appreciating the provisions of Sections 35E and 35F of the Central Excise Act, 1944 for de novo consideration in the light of introduction of Government of India''s explanation for removal of doubts to the already existing provisions of the Finance Act, 1994 in the Finance Act, 2010?"

It appears that the learned Tribunal has remanded the matter for fresh adjudication of all the issues except the demand in relation to Rs. 2,23,16,485/-. The learned Tribunal found that no show cause has been issued to the assessee. In that view of the matter, we are unable to interfere with this fact-finding. When the show cause notice was not issued to the assessee, the proceedings in connection therewith is a nullity and the adjudication thereof is also non est.

Accordingly, the appeal is dismissed. However, it would be open for the department to proceed in accordance with law consequent upon the judgment of the learned Tribunal. Miscellaneous petitions, if any, pending shall stand closed. No order as to costs.