ST - Maintainability - Appellant was never made noticee in SCN, therefore, Commr.(A) could not have disposed of appeal filed by appellant - matter remanded: CESTAT
By TIOL News Service
MUMBAI, MAY 09, 2017: IT is the case of the Revenue that the service provided is covered under 'Commercial Training and Coaching Services' while appellant contends that they are not required to pay the tax as the degrees which are given by them after completion of the education is recognized by various universities.
The AR raised a preliminary objection as to the maintainability of the appeal. It is submitted that the SCNwas issued to the Indian Institute of Management Training and who participated in the adjudication proceedings and not the present "appellant". The said Indian Institute of Management Training replied to the show cause notice and appeared before the adjudicating authority in the adjudication proceedings. It is further submitted that before the adjudicating authority the noticee was Indian Institute of Management Training and not Mathurabai Rambhau Narkhede Memorial Trust which is prosecuting the appeal before the bench; that the first appellate authority has also passed an order in the name of Mathurabai Rambhau Narkhede Memorial Trust while it is very clear that the order-in-original is passed against the Indian Institute of Management Teaching .
The appellant informed that Indian Institute of Management Training is owned and run by the Mathurabai Rambhau Narkhede Memorial Trust . A certificate from the Chartered Accountant indicating that the appellant Shri Mathurabai Rambhau Narkhede Memorial Trust owns Sun Hi-Tech and Management Development and Research Institute and Indian Institute of Management Teaching is also produced .
After considering the submissions, the CESTAT observed -
Appeal No. ST/497/2012:
+ It is seen from the adjudication proceedings that the appellant herein Mathurabai Rambhau Narkhede Memorial Trust was never a noticee before the adjudicating authority who vide letter dated 20/09/2011, submitted reply on behalf of the Indian Institute of Management and Training i.e.Mathurabai Rambahau Narkhede Memorial Trust only represented the matter before the adjudicating authority. The adjudicating authority also recorded findings while holding against the assessee in the name of Indian Institute of Management and Training.
+ We are at loss and surprise to note that the first appellate authority has missed this point and has passed an order-in-appeal in the name of Mathurabai Rambhau Narkhede Memorial Trust. In our considered view the Mathurabai Rambhau Narkhede Memorial Trust could not have filed an appeal before the first appellate authority and the appeal should have been filed by the Indian Institute of Management and Training.
+ Be that as it may, since the appeal has been filed before us by Mathurabai Rambhau Narkhede Memorial Trust against order-in-appeal which has disposed off an appeal filed by the Mathurabai Rambhau Narkhede Memorial Trust . We are of the view that the primary objection raised by the learned Authorised Representative has merits.
+ Without going into the merits of the issue of taxability of the services rendered, we find that the matter needs reconsideration by the first appellate authority inasmuch as the first appellate authority should consider the records which are filed before him and arrive at a conclusion whether Indian Institute of Management and Training was an appellant before him and so, he should pass an order in respect of that appellant. In our view, the notice being issued to Indian Institute of Management and Training and adjudication order has been issued in the same, appeal should have been preferred only by the noticee and the assessee as per the adjudication order.
The matter (involved in Appeal No. ST/497/2012) is remanded to the Commissioner(A).
Appeal No. ST/86461/2014:
Appeal is filed against the impugned order [viz. Order-in-Original No. PUN-EXCUC-001-COM-049-13-14 dated 14/02/2014] by M R Narkhede Memorial Trust who was never a party before the lower authority in the original adjudication or in the denovo adjudication. Appeal dismissed as being not filed by the proper aggrieved party.
The appeals were disposed of as above.
(See 2017-TIOL-1550-CESTAT-MUM)
