Record of personal hearing in service tax to evidence submissions; provision to remand an order abck for reconsideration

[Suresh Viswanathan]

We were given a personal hearing by the Commissioner (Appeals) on a service tax matter in an appeal against the order of the additional commissioner . We have made various additional submissions of case laws and also verbal submissions at the hearing. The Commissioner appeals dismissed our case without going into specific details of our various submissions and has not even responded on several specific arguments raised by us. The queris are:

(1) Can we obtain a copy of the record of hearing evidencing the submissions both verabl and documentary by us

(2) Can we ask for the order to be reconsidered or reviewed on the ground that it is passed 'without application of mind' as it has not even addresed the issues raised individually

(3) In case the order passed is as above does it not violate the board circulars in respect of the requirement that all authorities should respond on 'each issue' with 'analysis' and 'cogent reasoning' ?? and if it so violates our rights (other than appeal to the tribunal of course) ??

thanks

[KASTURI SETHI]

Dear Querist,

Query-wise reply is as under :-

(i) Yes. You can ask for a copy of record of personal hearing.

(ii) NO. Only option is to file appeal with CESTAT.

(iii) Each and every point should have been discussed in Order-in-Appeal. Such OIA is in violation of Natural Justice but you are free to raise all these points before Hon'ble CESTAT. Only filing an appeal with CESTAT is the option with you. You should concentrate on only those grounds of appeal which are full of legal and logical force.

No confrontation in any form i.e. directly or indirectly is advised in your interest. Language should be polite while drafting grounds of appeal.

[Rajagopalan Ranganathan]

Sir,

The only way to get justice is to file appeal to CESTAT. Once the order is passed, the officer who has passed the order will become functus officio and hence he cannot review his own order.

You can request for copy of record of hearing. Normally all Adjudicating Auithorities and Commissioner (Appeals) have to record in detail what happened during the hearing and such record should be signed by appeallant, his representative and the officer concerned and the same should be issued to the party immediately on conclusion of hearing. But this does not happen. My advice will be to file the appeal to CESTAT to avoid delay in filing the appeal in time. Do not waste time by pursuing the steps mentioned at point 2. Regarding board circulars nobody bothers to follow the instructions in most of the cases.

[SHIVKUMAR SHARMA]

I Support the View of Shr Rajagopalan Ranganathan Sir.

[KASTURI SETHI]

Only Supreme Court can review its own order.

[PAWAN KUMAR]

You need to file appeal to CESTAT and mention all the facts of passing the order of Commissioner (Appeals).

[DR.MARIAPPAN GOVINDARAJAN]

You put forth all the points narrated by you in the appeal before CESTAT.

AI Summary

Right to copy of personal hearing record where appellate order lacks application of mind; appeal to tribunal is remedy. A party can obtain the record of a personal hearing to evidence submissions; if an appellate order fails to address specific submissions or lacks application of mind this raises a natural justice concern, but the available remedy is to pursue a statutory appeal to the tribunal since the officer who issued the order is functus officio and cannot review it. Board circulars mandating analysis on each issue underline that omission of issue-specific reasoning should be pleaded as grounds in the tribunal appeal; focus on legally strong grounds and avoid confrontational language.