2013 (3) TMI 130 - AT - Service Tax

Recalling of final order - held that - An order cited by the learned Superintendent (AR) in favour of the department was passed by a learned Single Member. We note that the said order 2011 (5) TMI 545 - CESTAT, CHENNAI did not consider the relevant provisions of the General Clauses Act which are being invoked by the learned counsel for the present appellant. In this scenario, we are inclined to recall Final Order 2012 (9) TMI 596 - CESTAT, BANGALORE and direct that the appeal and stay application be listed on 21-3-2012 for being heard with other similar matters.

Summary

Issues:
1. Appellant claims a mistake apparent on the face of Final Order No. 52/2012.
2. Ground raised in the appeal not considered in the final order.
3. Need for a correct decision on the issue involving the General Clauses Act.
4. Recalling Final Order No. 52/2012 and listing for fresh hearing with other similar matters.
5. Pending appeal ST/1866/2011 filed by the department against the order passed by the Commissioner (Appeals).

Analysis:

1. The appellant filed an application stating a mistake in Final Order No. 52/2012, specifically regarding a ground not considered during the appeal. The appellant highlighted that the issue raised by the Commissioner as a revisionary authority was similar to the one raised by the assessee before the Commissioner (Appeals). However, due to the unavailability of the Memorandum of Appeal, a thorough examination of the issue was not possible at that moment.

2. The contention regarding the non-consideration of the second ground in the final order was acknowledged. The Tribunal recognized that the mistake was apparent on the face of the record, warranting a correction. It was emphasized that the issue needed to be addressed on its merits, especially since it was not disputed that the said ground was overlooked in the final order.

3. In light of other appeals and stay applications involving the same issue, the Tribunal decided to recall Final Order No. 52/2012. The decision was made to list the appeal and stay application for fresh hearing on a specific date, allowing for a comprehensive examination of the matter. The Tribunal aimed to render a correct decision on the preliminary issue raised by the Revenue after hearing all relevant parties and considering the provisions of the General Clauses Act.

4. The Tribunal took note of a previous order passed by a Single Member which did not consider the relevant provisions of the General Clauses Act invoked by the appellant's counsel. Considering the lack of precedents from any coordinate Bench on the virgin issue, the Tribunal deemed it necessary to recall the final order and schedule a fresh hearing to ensure a just and informed decision.

5. The application was allowed to the extent of recalling the final order, with instructions to list the appeal and all related applications for fresh hearing. Additionally, the pending appeal ST/1866/2011 filed by the department against the Commissioner (Appeals) order was also directed to be listed on the same date for further proceedings.