Commissioner of Central Excise Vs. Paras Trading Co.

Commissioner of Central Excise vs Paras Trading Co.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Oct 30, 2002

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Citation: sooperkanoon.com/29225
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T Gowri, G Srinivasan
Decided On: Oct 30, 2002
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Paras Trading Co.

Excerpt

.....consideration, the tribunal accepted the contention of the appellant that a show cause notice was not issued to it and allowed the appeal. the application seeks to contend that there is a mistake in this order, in that the show cause notice was in fact served on the appellant.2. the tribunal had in its order noted the inability of the departmental representative to produce despite on opportunity given to him, evidence of service of the notice on the appellant. the application relies upon an acknowledgement of service of the notice dated 1.12.1995 which is present in the commissioner's records. at the last hearing, it was brought to our notice by the counsel who earlier represented the appellant that the notice was in fact served on alka shah, who was the neighbour of the appellant and this service on her would not constitute service on the appellant. the departmental representative then sought time. today, he produces a statement of alka shah recorded by the departmental officers on 25th september, 2002 which he relies upon. whether the statement, constituting evidence which came into existence after the tribunal passed orders, can form the basis of application for rectification is highly debatable.however, even if we overlook this significant objection, the contents of the statement still in fact strengthen the case of the assessee. in her statement, alka shah says that she was living in room no. 2, krishna kunj located in sanghvi estate, ghatkopar. she received the notice addressed to arvind b. shah, the appellant, who was living in room no. 4 of the same building, in his absence, as a neighbourly act, because he was out of town at that time. subsequently, she passed on the envelope to mahendra shah, arvind shah's brother.3. it does not need any great discussion to say that service of the notice to the appellant's brother or to his neighbour does not constitute service on the appellant as required by law. section 37c of the act requires notice to be produced to.....

Full Judgment

1. In the order under consideration, the Tribunal accepted the contention of the appellant that a show cause notice was not issued to it and allowed the appeal. The application seeks to contend that there is a mistake in this order, in that the show cause notice was in fact served on the appellant.

2. The Tribunal had in its order noted the inability of the departmental representative to produce despite on opportunity given to him, evidence of service of the notice on the appellant. The application relies upon an acknowledgement of service of the notice dated 1.12.1995 which is present in the Commissioner's records. At the last hearing, it was brought to our notice by the counsel who earlier represented the appellant that the notice was in fact served on Alka Shah, who was the neighbour of the appellant and this service on her would not constitute service on the appellant. The departmental representative then sought time. Today, he produces a statement of Alka Shah recorded by the departmental officers on 25th September, 2002 which he relies upon. Whether the statement, constituting evidence which came into existence after the Tribunal passed orders, can form the basis of application for rectification is highly debatable.

However, even if we overlook this significant objection, the contents of the statement still in fact strengthen the case of the assessee. In her statement, Alka Shah says that she was living in room No. 2, Krishna Kunj located in Sanghvi Estate, Ghatkopar. She received the notice addressed to Arvind B. Shah, the appellant, who was living in room No. 4 of the same building, in his absence, as a neighbourly act, because he was out of town at that time. Subsequently, she passed on the envelope to Mahendra Shah, Arvind Shah's brother.

3. It does not need any great discussion to say that service of the notice to the appellant's brother or to his neighbour does not constitute service on the appellant as required by law. Section 37C of the Act requires notice to be produced to the person or his authorised agent or sent to him (or such agent) by registered post, acknowledgment due. It is very clear that the departmental officers, not having found Mahendra B. Shah in the premises, passed on the notice to the neighbour. She was not an employee or agent of the appellant. To claim, in this situation, that the notice has been served on the appellant is wholly unacceptable.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Paras Trading Co. Same Subject Service Tax Same Judge S T Gowri, G Srinivasan