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Judgment
This application seeks stay of recovery of tax of Rs.76,202/- and penalties under section 76, 77 and 78 in order- in-appeal no.199(ST)/RPR/APPL-
I/2013 dated 21/11/2013 of Commissioner Customs and Central Excise (Appeals), Raipur-I.
The appellant, registered as provider of ""business auxiliary service"" and as recipient of ""goods transport agency"" services, had installed a
weighbridge which was also allowed for use by other entities. On the basis of accounting entries, a notice was issued for recovery of tax on amounts
alleged to have been received from such outside entities for use of the weighbridge for rendition of ""support services of business of commerce"" as
defined in section 65(104) of Finance Act, 1994. The original authority has confirmed the demand for the period 2006-2007 to 2008-2009. The
appellate authority concurred with this finding on the basis of records as the appellant did not respond to notices. It is noted that the appellant did not
appear before the original authority too.
The main contention of the appellant is that they had not had an opportunity to present evidence in their defence as their accountant had absconded
with relevant documents. Learned Counsel for appellant reiterated that the first appellate authority had not considered their claim on merit and had, by
recourse to Rule 5 of Central Excise (Appeals) Rules, 2001, refused to entertain grounds not raised in original proceedings.
Learned Counsel for applicant contends that the weighbridge was not provided to or used by their customers or clients, that the receipts of appellant
had not exceeded the limits laid down in notification no.6/05-ST dated 1st March, 2005 for the year 2006-07 and that receipts of Rs.3.15 lakhs during
2007-2008 was also exempt by notification no.4/2007-ST dated 1st March, 2007.
We have gone through the relevant provisions of the Finance Act, 1994 and the Central Excise (Appeals) Rules, 2001. The claim of the learned
Counsel regarding inapplicability of the Central Excise (Appeals) Rules, 2011 is not tenable. However, the interests of justice require affording of
opportunity for representation before the appropriate authority. While the appellant may have been less than diligent in defending its position before the
original authority, its claims against leviability of tax should not be brushed aside without examination. The appellate authority is, therefore, directed to
consider and decide on each of the pleas raised by the appellant. Accordingly, the stay application is allowed by way of remand.
At the same time, negligence on the part of the appellant having caused an additional and unnecessary burden, we impose costs of Rs. 5,000/-.
[Operative portion of the order has already been pronounced in the open court.]