By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
fiogf49gjkf0d
Whether failure of adjudicating authority to consider and refer to the decisions of judiciary relied on by the Appellant, is a ground for quashing the Order of adjudicating authority? Held – Yes.
Facts:
Appellant was registered under Business Auxiliary service (BAS), Management Maintenance & Repairs service (MMRS) and Erection & Commissioning service. Appellant had filed an appeal against an Order of adjudicating authority confirming SCN wherein service tax demand was raised under the first two categories on the services rendered to its foreign associate companies/ subsidiaries.
The Appellant filed an exhaustive reply on various grounds and relied on various judgements which included the full bench judgement of the Delhi Tribunal on the similar facts and urged that in terms of the Export of Services Rules, the service provided by the Appellant was not liable for service tax. Adjudicating authority while confirming the demand had though adverted to some of the decisions relied by Appellant, did not consider the full bench judgement of the Delhi Tribunal and no analysis was made to any judgement relied by the Appellant.
Held:
• An Adjudicating authority, even though is a departmental officer, while performing judicial function must, bring minimum standards of fairness, neutrality and professionalism in discharge of his function. A judicial function requires a neutral appreciation of facts, due and conscious reference to the material on records, careful and precise statement of competing contentions and precedents, if any, relied upon by either party, analysis of relevant facts and applicable provisions of law.
• An order which fails to adhere to the basic principle of discipline is a non-speaking order. Quashing the order, the matter was rendered for fresh determination.
• The Tribunal directed the Respondent to pay Rs.10,000/- to Appellant for unnecessarily burdening the Appellant with litigation.
