Custom, Excise & Service Tax Tribunal
Commissioner, Cgst-East Delhi vs Halcrow Consulting India Pvt Ltd on 7 July, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
SERVICE TAX APPEAL No. 51099 of 2022
[Arising out of Order in Appeal No. 09/ST/DLH/2020 dated 28/01/2020 passed
by Commissioner (Appeals), Central Goods and Service Tax, New Delhi]
The Commissioner ...Appellant
Central Tax Goods & Service Tax, Delhi-East,
C.R. Building, I.P. Estate,
New Delhi-110002
Versus
M/s.Halcrow Consulting India Pvt. Ltd. ....Respondent
nd R-27, 2 Floor, Pratap Market, Jangpura B, New Delhi-110014 APPEARANCE:
Mr. Ishwar Charan, Authorized Representative for the Appellant - Department Ms. Priyanka Rathi, Advocate for the Respondent - Assessee CORAM : HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing/Decision: 07/07/2022 FINAL ORDER No. 50605/2022 DR.RACHNA GUPTA The learned Departmental Representative has placed on record Instruction dated 22.08.2019 bearing F.No.390/Misc./116/2017-JC issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell). It is impressed upon that vide the aforesaid Instruction, monetary limits for the appeals against the Departmental orders has been fixed for this Tribunal/High Courts and/Supreme Court. It is submitted that as per the table in the 2 Service Tax Appeal No.51099 of 2022 said Instruction the monetary limit for an appeal to be maintainable before this Tribunal is Rs.50.00 Lakhs and above. Para 3 of the Instruction is impressed upon and accordingly, the present appeal is prayed to be dismissed as withdrawn.
2. Ld. Counsel for the appellant has mentioned that vide the impugned appeal the Department has challenged the power of remand with Commissioner (Appeals). It is further submitted that the Commissioner (Appeals) has otherwise accepted the respondent-assessee's contention that the impugned amount (the refund whereof was prayed) i.e. the balance available credit to be eligible for a claim of refund. It is submitted that despite accepting the said contention, Commissioner (Appeal) has remanded the matter to original adjudicating authority for making certain verifications. The ld. Counsel further submitted that the assessee did not file any appeal against the said order for the reason of aforementioned acceptance of assessee's contention by Commissioner (Appeals) and that the order of remand of which the appellant was aggrieved was already been challenged by the Department. It is submitted that withdrawal of this appeal by the Department at the stage when the time limit for assessee- respondent to file an appeal has expired shall be detrimental to the interest of the appellant. Ld. Counsel has requested for passing an order in furtherance of the prayer of the impugned appeal of the Department. Ld. Counsel has laid emphasis upon the Final Order No.50513/2022 dated 03.06.2022 in Service Tax Appeal 3 Service Tax Appeal No.51099 of 2022 No.51068 of 2022 wherein similar relief has been extended in favour of the assessee.
3. After hearing both the parties and perusing the Instruction relied upon by ld. D.R., it is observed that as per the said Instruction, the matters relating to Central Excise and Service Tax, the pecuniary limit involved in the appeal to be filed before this Tribunal is Rs.50.00 Lakhs and above. Paragraph 3 reads as follows:-
"3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the Supreme Court, High Courts and CESTAT. All other terms and conditions of concerned earlier instructions will continue to apply."
3.1 This paragraph of the Instruction makes it clear that where the subject matter of an appeal already filed before this Tribunal is found to be less than Rs.50.00 Lakhs, the Department is supposed to seek withdrawal of the said appeal. Keeping in view the same and the fact that without following the monetary limits the proper jurisdiction of this Tribunal shall be affected, also keeping in view that the appeal is filed by the Department, the first party of the litigation who is the master of its litigation, the request of withdrawal as made by the appellant-Department is hereby accepted.
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Service Tax Appeal No.51099 of 2022
4. However, keeping in view the submissions of the appellant and the fact that the grievance of the appellant with respect to the order of Commissioner (Appeals) in the impugned appeal is same as is the grievance of the Department in the impugned appeal i.e. the Department has challenged the power of Commissioner (Appeals) to remand. At this stage Section 35A of Central Excise Act 1944 is perused. Sub Section 3 thereof reads as follows:-
" (3) [The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks just and proper confirming, modifying or annulling the decision or order appealed against]"
5. The bare perusal reflects that Commissioner (Appeals) while adjudicating the same can decide the appeal in three of the following modes only:-
1) Confirming the order appealed against
2) Modifying the said order or
3) Annulling the said decision.
5.1 The bare perusal makes it clear that the provision do not extend power of remand to the Commissioner (Appeals). Also from the order of Commissioner (Appeals) in para 14 thereof he has specifically acknowledged the entitlement of the appellant to seek the impugned refund. In totality of the discussion, it is observed that the order of Commissioner (Appeals) has committed apparent non-compliance of statutory provisions (Section 35 A of CEA) the same amounts to be an error apparent on the face of the said order. Hence, while accepting the request of the Department for 5 Service Tax Appeal No.51099 of 2022 withdrawing the impugned appeal but keeping in view that the appellant was also to file an appeal seeking the same prayer as the Department has prayed and that the time of that appeal has already expired that liberty is given to the appellant to seek the appropriate remedy before commissioner (Appeals). Commissioner (Appeals) is required to consider their prayer in case the assessee exercises the said appropriate remedy, without applying the bar of limitation.
6. As a result of entire above discussion, the impugned appeal of the Department is allowed to be withdrawn. Appeal stands dismissed as withdrawn.
[Order dictated and pronounced in the open Court] (DR. RACHNA GUPTA) MEMBER (JUDICIAL) Anita