At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
By, THE HONORABLE JUSTICE: S.S. GARG
For Petitioner: Rajesh Kumar T.R., CA And For Respondents: N. Jagdish, AR
1. The applicant/respondent has filed this miscellaneous application to recall Final Order No. 26942/2013, dated 8-11-2013 passed in Appeal No. ST/CO/2/2012 filed by M/s. Rajesh Tours & Travels (respondents). The applicant has further stated in the application that the CESTAT vide Final Order No. 26942/2013, dated 8-11-2013 had dismissed the appellant's appeal (Revenue's appeal) as the amount involved was less than Rs. 5,00,000/- (Rupees Five Lakhs only) in the light of the decision of the Hon'ble High Court of Karnataka in the case of Commissioner of Income Tax, Bangalore v. Ranka & Ranka reported in : 2012 (284) E.L.T. 185 (Kar.). It has further been stated in the application that the respondent had also filed cross-objection (cross appeal) bearing Appeal No. ST/CO/2/2012 in Appeal No. ST/399/2011. Since, they were also aggrieved by portion of the Commissioner (Appeals) order to the extent of confirming the demand of Service Tax along with interest and penalties. The said prayer was specifically made in Form ST-6 at Column No. 6 as also in the prayer. While dismissing the Revenue's appeal vide Final Order No. 26942/2013, dated 8-11-2013, Hon'ble CESTAT has mistakenly disposed of the cross-objection filed by the respondent without considering the prayer and the grounds contained therein and also without listing the matter for hearing and further without hearing the respondent. The applicant has prayed for recalling the Final Order to the extent of disposing of the cross-objection. Heard both the parties and perused the records.
2. Learned consultant for the applicant submitted that the decision dated 8-11-2013 dismissing the appeal of the Revenue under the mandatory limit and also disposing of the cross-objection of the applicant is not sustainable in law and is liable to be recalled as far as disposing of the cross-objection of the applicant is concerned. He further submitted that the Tribunal did not dispose of the cross objection as it tantamount to appeal by the respondent by passing a reasoned order. He further submitted that on the date of the impugned order, respondent was not present rather the respondent sought adjournment by filing an application before the Tribunal which is on record. The application is dated 8-11-2013 requesting the Tribunal to adjourn the case as the counsel for the appellant was unable to appear on that day and the Tribunal while passing the order has also observed that "None is present for the respondent. However, since the issue involved could be in favour of the respondent, on going through the record, I consider that the appeal can be decided even in their absence and accordingly it is taken up for final decision." Learned consultant submitted that from the language of the order it appeared that the Tribunal is deciding the matter in favour of the respondent on the basis of the record but in fact the respondent is aggrieved by the impugned order passed by the Commissioner and therefore the respondent had also filed cross-objection in the appeal filed by the Department. He further submitted that the applicant has also filed an affidavit on record justifying the delay in filing the present application. In support of his submissions, he relied upon the following decisions:
(a) Ispat Traders v. Commissioner of Customs, Jamnagar - 2009 (235) E.L.T. III (Tri.-Ahmd.)
(b) Commr. of C.E., Allahabad v. Bajaj Hindustan Sugar and Inds. Ltd : 2010 (253) E.L.T. 614 (Tri.-Del.)
(c) Hastimal Jeeraj Jain v. Commissioner of Central Excise : 2016 (334) E.L.T. 481 (Guj.)
(d) Hastimal Jeeraj Jain v. CCE : 2016 (332) E.L.T. 266 (Guj.)
(e) Rajkamal Textile Printery v. Union of India : 2016 (332) E.L.T. 99 (Guj.)
(f) Afloat Textiles (India) Ltd. v. Union of India : 2015 (325) E.L.T. 867 (Bom.).
3. On the other hand the learned AR vehemently opposed the application and submitted that the cross-objections which has already been disposed of along with Department's appeal cannot be allowed to be restored and decided independently. He further submitted that recalling the impugned order would tantamount to review of the order which power is not available to the Tribunal. He further submitted that the applicant has failed to give satisfactory reasons for such an inordinate delay in filing the application. In support of his submission, he also relied upon the following decisions:
(a) Commissioner of Customs v. Lindt Exports : 2012 (278) E.L.T. 587 (Del.)
(b) Jai Bharat Steel Co. v. Commissioner of Customs : 2014 (305) E.L.T. 240 (Guj.)
(c) Vibha Fluid Systems Engineering Pvt. Ltd. v. Union of India : 2013 (287) E.L.T. 29 (Guj.)
(d) Kirtikumar Jawaharlal Shah v. Union of India : 2012 (282) E.L.T. 217 (Bom.)
(e) Commissioner of Central Excise, Calcutta v. A.S.C.U. Ltd : 2003 (151) E.L.T. 481 (S.C.)
(f) Commissioner of C. Ex., Bangalore-III v. McDowell & Co. Ltd : 2005 (186) E.L.T. 145 (Kar.).
After hearing the submissions of both the parties and the perusal of the judgments cited at bar, I am of the view that the disposal of the cross-objection by the applicant while disposing of the appeal of the Revenue is wrong and is liable to be recalled. First of all on the day, when the order dated 8-11-2013 was passed respondent was not present and has also made a request in writing for adjournment. Further the cross-objections were simply disposed of in view of the rejection of the appeal filed by the Revenue without going into the merits of the cross-objection. As far as delay in filing the application is concerned, I am satisfied with the reasons given in the affidavit filed by the applicant wherein the applicant has stated that after the CESTAT order was passed she was advised by her legal counsel that the issue was decided in her favour and therefore there was no further tax liability and that she need not go on further appeal. However, when the Service Tax Department approached the applicant orally informed that she need to pay further Rs. 175 lakhs (Rupees One Crore Seventy Five Lakhs only) in accordance with the CESTAT Order then she immediately approached her counsel who then went through the order again and ascertained the Service Tax liability as demanded by the Service Tax Department. Thereafter the applicant approached a firm of Chartered Accountant who advised the applicant to file an application for restoration of appeal and thereafter this application was filed and in the process, the delay was caused. When the order dated 8-11-2013 was passed, the Tribunal held that the issue could be decided in favour of the respondent on going through the records without the presence of the respondent but in fact by disposal of the c
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ross-objection, a part of the impugned order which was against the applicant has been upheld. Further the cross-objection filed by the applicant was not before the Tribunal on that day as the same was not even listed. Therefore, in my view the disposal of the cross-objection simply with the dismissal of the appeal of the Revenue is not in accordance with the law and the decisions cited by the consultant. Therefore, I allow the application to the extent of restoring the cross-objection of the applicant to be decided of merit subject to the cost of Rs. 10,000/- (Rupees Ten Thousand only). Compliance of the payment of cost will be made on 11-5-2017. On compliance of the payment of cost, the cross-objection should be listed for final hearing.