FDC Limited Versus CCGST, Mumbai West
Service Tax
2018 (10) TMI 1561 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 26-10-2018
APPEAL NO: ST\/87537\/2018 – A\/87764\/2018
Service Tax
Shri Ajay Sharma, Member (Judicial)
\nAppellants: Shri Mehul Jivani, Advocate
\nRespondent: Shri O.M Shivadikar, AC (AR)
\nORDER
\nThe instant appeal has been filed from the order-in-appeal no. NA\/GST A-III\/MUM\/392\/17-18 dated 16.03.2018 passed by the Commissioner (Appeals-III), CGST and CX, Mumbai.
\n2. Refund claim of service tax of Rs. 3,51,117\/- was filed by the appellant on the ground that they have not provided any service to M\/s Generic Partners, Australia but only provided documents to them, in respect of the products manufactured and supply to them, in order to enable them to apply and obtained marketing authorization from distribution and for providing the documents, the appellant has received the amount as per the Manufacture and Supply Agreement dated 05.02.2018 between M\/s Gen<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n he Revenue and perused the record. The appellant has challenged the impugned order on various grounds viz. that the issue of the violation of principle of natural justice has not been gone into by the Commissioner while deciding the appeal; that since no service was provided by the appellant, the amount paid by the appellant is not service tax and therefore, the time limit as prescribed under Section 11B is not applicable for refund of the amount which is not service tax at all; that unjust enrichment is not applicable in the facts of the present case since the agreement between M\/s Generic Partners, Australia and the appellant clearly stipulates that the consideration is exclusive of VAT and exclusive of other taxes if applicable; that even if the activity is treated as a provision of service, the same will fall under the definition of export of service and therefore, no service tax is payable. Learned Authorised Representative, on the other hand reiterated the findings recorded in th<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ty of defending the case. A consistent view taken by this Tribunal is that there has to be issuance of show cause notice, since it is mandatory and if the same has not been issued, then it is contrary to law and such proceedings have to be quashed. The lacunae of non issue of show cause notice is not curable and such proceedings are not sustainable. Even if a party has waived the show cause notice, it will not absolve the department's statutory liability to issue show cause notice under the relevant provision. Mere presence of the appellant before the Adjudicating Authority during the course of hearing does not authorise the department to encroach upon the right of the appellant to have a fair the opportunity of placing his defence before the adjudicating authority. The presence of the appellant before the Adjudicating Authority, without issuance of show cause notice, cannot lead to the conclusion that the appellant had a fair opportunity to defend the case. Otherwise also principle of<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" FDC Limited Versus CCGST, Mumbai WestService Tax2018 (10) TMI 1561 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 26-10-2018APPEAL NO: ST\/87537\/2018 – A\/87764\/2018Service TaxShri Ajay Sharma, Member (Judicial) Appellants: Shri Mehul Jivani, Advocate Respondent: Shri O.M Shivadikar, AC (AR) ORDER The instant appeal has been filed from the order-in-appeal no. NA\/GST A-III\/MUM\/392\/17-18 dated 16.03.2018 passed … Continue reading “FDC Limited Versus CCGST, Mumbai West”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-14740","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14740","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14740"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/14740\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14740"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14740"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14740"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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