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Judgment
Stay application along with appeal has been filed against Order-in-original dated 20.1.2012 in terms of which service tax demand of Rs.86,58,835/-
for the period April, 2005 to March, 2009 was confirmed under "site formation and clearance, excavation and earthmoving and demolition service".
Penalty under Sections 77 and 78, of Finance Act, 1994 was also imposed.
The appellant pleaded that it could not file any reply to the show cause notice nor could attend personal hearing because the proprietor Mrs.
Manpreet Bajwa was diagnosed with cancer. As per the report of Medanta, The Medicity submitted for our perusal, we find that the differential
diagnosis is “Seros Adenocarcinma ? Ovary ? fallopian tubes Stage IV (left supraclavicular LN) Hypothyriodism'' and the treatment plan included
chemotherapy. As per this report she was admitted in 16.6.2010. It has also been contended that they actually paid service tax on the basis of actual
receipts while the impugned demand has been raised on the basis of figures shown in their profit and loss account which were on accrual basis.
We take note of the fact that proprietor of the firm was diagnosed with cancer which also required chemotherapy. Being diagnosed with cancer is
devastating to an individual. The show cause notice is dated 9.9.2010 and she was admitted to Medanta Hospital on 16.6.2010. In these
circumstances, it is totally understandable that the appellant could not file reply to show cause notice or attend personal hearing as a result of which
ex. parte order was issued by the Commissioner. Further it is also pleaded that due service tax based on actual receipt had been paid by appellant.
Having regard to the peculiar and sad circumstances of this case, we deem it fit to waive requirement of pre-deposit, set aside the impugned order and
remand the case to the Commissioner for de nova adjudication after giving the appellant an opportunity of being heard.