YADUVEER SINGH vs COMMISSIONER, CENTRAL EXCISE , CUSTOMS & SERVICE TAX-UDAIPUR

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI

PRINCIPAL BENCH,
COURT NO. III

SERVICE TAX APPEAL NO. 51693 OF 2021

[Arising out of the Order-in-Original No. UDZ-EXCUS-000-COM-007/2020-21
dated 24/07/2020 passed by The Commissioner of Central Excise, Udaipur.]

Yaduveer Singh, Proprietor, Appellant
M/s Simen Tech,
2-F-28, Vigyan Nagar,
Kota – 324 005.

VERSUS

Commissioner of Central Excise, Respondent
NCR Building, 142-B, Sector – 11,
Udaipur.

Appearance

None for the appellant.
Shri Anil Kumar, Authorized Representative for the Department


CORAM:
HON’BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL)
HON’BLE SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL)


FINAL ORDER NO. 51427/2026
DATE OF HEARING : 31.08.2026
DATE OF DECISION: 07.09.2026
P.V. SUBBA RAO


1
M/s. Yaduveer Singh, Proprietor of M/s Simen Tech filed
2
this appeal to assail the Order dated 24.7.2020 passed by the
Commissioner in which he decided the proposals made in the
3
show cause notice dated 21.10.2019 issued to the appellant.
Nobody has been appearing for the appellant in the hearings

1. appellant
2. impugned order
3. SCN

2 ST/51693 OF 2021
since 23.9.2025 when this appeal was first listed. On 22.5.2026,
last opportunity was granted to the appellant and the matter was
directed to be listed today. Nobody appeared on behalf of the
appellant even today.

2. Supreme Court held in Balaji Steel Re-rolling Mills
4
versus Commissioner of Central Excise and Customs that if
the appellant does not appear on the day fixed for hearing, this
tribunal should decide the matter on merits. Relevant portion of
this judgment is reproduced below:
“11. From a perusal of the aforesaid provisions, we find that the Act
enjoins upon the Tribunal to pass order on the appeal confirming,
modifying or annulling the decision or order appealed against or
may remand the matter. It does not give any power to the
Tribunal to dismiss the appeal for default or for want of
prosecution in case the appellant is not present when the appeal
is taken up for hearing.

12. A similar question came up for consideration before this Court
in The Commissioner of Income-Tax, Madras v. S. Chenniappa Mudaliar,
Madurai - 1969 (1) SCC 591 wherein this Court considered the provisions
of Section 33 of the Income-tax Act, 1922 and Rule 24 of the Appellate
Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the
appeal for want of prosecution. For ready reference, Section 33(4) of the
Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946
are reproduced below :-
Section 33(4) of the Income Tax Act, 1922
“33(4). The Appellate Tribunal may, after giving both parties to the
appeal an opportunity of being heard, pass such orders thereon as it
thinks fit, and shall communicate any such orders to the assessee and to
the Commissioner.”
Rule 24 of the Appellate Tribunal Rules, 1946
“24. Where on the day fixed for hearing or any other day to which the
hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the Tribunal may dismiss the appeal for
default or may hear it ex parte .”
Considering the aforesaid provisions, this Court held as under :-
“7. The scheme of the provisions of the Act relating to the Appellate
Tribunal apparently is that it has to dispose of an appeal by making such
orders as it thinks fit on the merits. It follows from the language of

4. 2014 (310) E.L.T. 209 (S.C.)

3 ST/51693 OF 2021
Section 33(4) and in particular the use of the word “thereon” that the
Tribunal has to go into the correctness or otherwise of the points decided
by the departmental authorities in the light of the submissions made by
the appellant. This can only be done by giving a decision on the merits
on questions of fact and law and not by merely disposing of the appeal
on the ground that the party concerned has failed to appear. As
observed in Hukumchand Mills Ltd. v. CIT, the word “thereon” in Section
33(4) restricts the jurisdiction of the Tribunal to the subject-matter of
the appeal and the words “pass such orders as the Tribunal thinks fit”
include all the powers (except possibly the power of enhancement) which
are conferred upon the Appellate Assistant Commissioner by Section 31
of the Act. The provisions contained in Section 66 about making a
reference on questions of law to the High Court will be rendered
nugatory if any such power is attributed to the Appellate Tribunal by
which it can dismiss an appeal, which has otherwise been properly filed,
for default without making any order thereon in accordance with Section
33(4). The position becomes quite simple when it is remembered that
the assessee or the CIT, if aggrieved by the orders of the Appellate
Tribunal, can have resort only to the provisions of Section 66. So far as
the questions of fact are concerned the decision of the Tribunal is final
and reference can be sought to the High Court only on questions of law.
The High Court exercises purely advisory jurisdiction and has no
appellate or revisional powers. The advisory jurisdiction can be exercised
on a proper reference being made and that cannot be done unless the
Tribunal itself has passed proper order under Section 33(4). It follows
from all this that the Appellate Tribunal is bound to give a proper
decision on questions of fact as well as law which can only be done if the
appeal is disposed of on the merits and not dismissed owing to the
absence of the appellant. It was laid down as far back as the year 1953
by S.R. Das, J. (as he then was) in CIT, v. Mtt. Ar. S. Ar. Arunachalam
Chettiar that the jurisdiction of the Tribunal and of the High Court is
conditional on there being an order by the Appellate Tribunal which may
be said to be one under Section 33(4) and a question of law arising out
of such an order. The Special Bench, in the present case, while
examining this aspect quite appositely referred to the observations of
Venkatarama Aiyar, J. in CIT v. Scindia Steam Navigation Co.
Ltd. indicating the necessity of the disposal of the appeal on the merits
by the Appellate Tribunal. This is how the learned judge had put the
matter in the form of interrogation :
“How can it be said that the Tribunal should seek for advice on a
question which it was not called upon to consider and in respect of which
it had no opportunity of deciding whether the decision of the Court
should be sought.”
Thus looking at the substantive provisions of the Act there is no escape
from the conclusion that under Section 33(4) the Appellate Tribunal has
to dispose of the appeal on the merits and cannot short-circuit the same
by dismissing it for default of appearance.”
13. Applying the principles laid down in the aforesaid case to
the facts of the present case, as the two provisions are similar,
we are of the considered opinion that the Tribunal could not have
dismissed the appeal filed by the appellant for want of
prosecution and it ought to have decided the appeal on merits
even if the appellant or its counsel was not present when the
appeal was taken up for hearing . The High Court also erred in law in
upholding the order of the Tribunal.
(emphasis supplied)

4 ST/51693 OF 2021
3. Accordingly, we have heard Shri Anil Kumar, learned
authorised representative for the Revenue and perused the
records.

4. The appellant had obtained service tax registration on
25.11.2004 and got it amended on 24.7.2008 but he was neither
paying service tax nor filing any service tax returns. Intelligence
received by the department indicated that the appellant had
rendered taxable services. After completing the investigation, it
was felt that the appellant had obtained the following gross
receipts for the services during the period 2014-2015 to 2016-
2017.
Period Gross receipts
as per IT
Returns (Rs.)
2014-15 10,01,32,729
2015-16 8,35,22,865
2016-17 6,41,07,678
2017-18 (upto
30.6.2017) (not as per
1,81,91,185
IT returns as the
return had not been
filed)
Total 26,59,22,065

5. Accordingly, the SCN proposed demand of service of Rs.
3,62,51,923 under the proviso to section 73(1) of the Finance
5
Act, 1994 along with interest under section 75 of the Act and

5. Act

5 ST/51693 OF 2021
proposed to impose penalties under sections 77 and 78 of the
Act.
6. In the impugned order, however, the Commissioner only
confirmed demand of service tax of Rs. 1,26,07,164/- with
interest and penalties.

7. The appellant contested part of this confirmed demand
only, mainly on the ground that cum tax benefit was not
extended to it and that the demand for the year 2017-2018 was
based on contract value only. The details have been neatly
summarised in the synopsis submitted by the learned authorised
representative for the Revenue which are as follows:
Period Taxable
value (Rs.)
Service
tax
payable
(Rs.)
Tax liability
accepted
by the
appellant
(Rs.)
Difference
(Rs.)
Remarks
10,01,32,729 48,32,062 46,84,225 1,38,837 The appellant
2014-
2015
is seeking
cum tax
benefit
8,35,22,865 24,70,874 24,69,067 1,807 Is not
pressing as
the amount
is small
2015-
2016
6,41,07,678 25,55,513 25,55,513 29,037 The appellant
2016-
2017
is seeking
cum tax
benefit
1,81,91,185 27,28,678 27,28,678 The appellant
-
2017-
2018
(upto
June
2017)
is contesting
the demand
on the
ground that
the demand
was based on
the
contractual
amounts.

6 ST/51693 OF 2021

8. We find that the appellant is only disputing the computation
of tax liability for the years 2014-2015, 2016-2017 on the ground
that cum tax benefit should be given to it and for the year 2017-
2018 on the ground that the tax was computed on the basis of
the contract amount.

9. We find in favour of the appellant on the question of cum
tax benefit as it is a well-settled principle that if service tax is not
paid and there is no evidence that it has been separately
collected from the service recipients, the amounts received as
consideration should be considered as cum tax consideration.
Therefore, we extend the cum tax benefit to the appellant.

10. As far as the year 2017-2018 is concerned, the department
did not have the IT Returns or the balance sheets. Hence, the
demand of service tax has been made based on the agreements
entered into. While the appellant has contested the demand, it
has not, even before us, put up any figures to show how much
service was rendered during the period and how much was
received as consideration. Therefore, the best judgment can only
be based on whatever figures are available. We, therefore, find
that the impugned order is correct in determining the tax liability
accordingly. However, even for this year, cum tax benefit should
have been extended.

11. In view of the above, we partly allow the appeal and
remand the matter to the Commissioner for the limited purpose
of calculating the amount of service tax, interest and mandatory

7 ST/51693 OF 2021
penalty payable after extending cum tax benefit for the years
2013-2014, 2016-2017 and 2017-2018.
(Order pronounced in open court on 07/09/2026.)




(ASHOK JINDAL)
MEMBER (JUDICIAL)




(P.V. SUBBA RAO)
MEMBER (TECHNICAL)

PK