2015 (8) TMI 1366 - AT - Service Tax

Waiver of pre-deposit - Section 35F of the CEA, 1944 - whether the appellants are liable to pay Service Tax under the category Business Auxiliary Service (BAS) for the disputed period? - Held that - The appellant has filed the misc. application seeking to recall the final order and restore the appeal. The application is neither for Rectification of Mistake (ROM) nor an application for Restoration of Appeal (ROA). The appellant has opted to file a misc. application after final disposal of the appeal. In the first line of the misc. application the appellant has stated that the misc. application is being filed for rectification of mistake/restoration of appeal. The appellant therefore, seeks the Tribunal to bend suitably the misc. application as a ROM or ROA, which by any cannon of law is not permissible. The application per se is not maintainable. The appeal was filed on 3-10-2013 and the stay application came up for hearing after one year, on 26-11-2014, on which day the appeal was disposed. The appellant had not deposited any amount. He now puts forward a new contention that SCN was not served upon him and prays for recall of the final order of the Tribunal. In this application the appellant explains reasons for not submitting a written reply. If such practice is followed there would be no finality to any litigation. In such circumstances, we do not find any merit in the misc. application. Application not maintainable - decided against assessee.

Summary

Issues Involved:
1. Whether the Tribunal erred in disposing of the appeal finally without recording the consent of the parties.
2. Whether the appellant's failure to file a written reply to the show cause notice (SCN) and subsequent new contentions affect the validity of the final order.
3. Whether the miscellaneous application for rectification of mistake/restoration of the appeal is maintainable.

Issue-wise Detailed Analysis:

1. Tribunal's Final Disposal of the Appeal Without Recording Consent:
The appellant contended that the appeal was disposed of finally on a date meant only for hearing the stay application, without their consent. They argued that the Tribunal did not record the consent of the parties for final disposal, which was a procedural error. The Tribunal acknowledged that it did not record the consent but noted that neither party objected to the final disposal during the hearing. The Tribunal referenced the decision in *Commissioner of Central Excise v. Mahindra & Mahindra Ltd.*, distinguishing it on the facts that, in this case, the Tribunal had considered the facts and contentions before making the final decision.

2. Appellant's Failure to File a Written Reply to the SCN and New Contentions:
The Tribunal emphasized that the appellant did not file any written reply to the SCN despite being given multiple opportunities. The appellant's failure to submit a written reply was significant in the Tribunal's decision. The appellant later claimed in the miscellaneous application that the SCN was not served upon them, which was a new contention not raised earlier. The Tribunal found this new contention to be an afterthought and noted that the appellant did not mention this in the appeal memo or during the initial proceedings. The Tribunal cited the primary adjudicating authority's order, which detailed the opportunities given to the appellant for personal hearings and their failure to submit a written synopsis.

3. Maintainability of the Miscellaneous Application:
The Tribunal found the miscellaneous application for rectification of mistake/restoration of the appeal to be not maintainable. The appellant filed the application six months after the final order, and the Tribunal noted that if the contention of lack of consent was genuine, the application would have been filed immediately. The Tribunal clarified that the application was neither a Rectification of Mistake (ROM) nor a Restoration of Appeal (ROA) but a miscellaneous application, which was not permissible. The Tribunal concluded that allowing such applications would undermine the finality of litigation and found the application devoid of merits.

Conclusion:
The Tribunal dismissed the miscellaneous application, stating that it lacked merit and was not maintainable. The Tribunal reiterated that the appellant's failure to file a written reply and the new contentions raised post-final order were insufficient grounds to recall the final order. The procedural aspect of not recording consent did not invalidate the final order, as no objections were raised during the hearing.