2016 (2) TMI 594 - HC - Service Tax

Cargo Handling Service - whether tribunal did not consider the arguments of the revenue while setting aside the demand - Held that - Tribunal reflects that the departmental representative did not make any submissions opposing the contentions of the Respondent that the unsustainability of the claims was covered by earlier orders of the Commissioner and precedents of the Tribunal itself. The departmental representative simply supported the impugned order of the Commissioner. What may or may not have transpired before the Tribunal is best known to the members of the Tribunal itself. The pleadings in the appeal extracted above are delightfully vague and cannot be construed as non-consideration of the argument of the departmental representative. Recitals in the order sheet are sacrosanct so far as the superior Court is concerned with regard to what may or may not have transpired before the Tribunal. If the Appellant is of the opinion that its arguments and contentions have not been considered the proper remedy for the Appellant is to first move before the Tribunal itself inviting its attention to the same. - Appeal dismissed - Decided against the revenue.

Summary

Issues:
1. Delay in filing the appeal.
2. Classification of services as Cargo Handling Service.
3. Jurisdiction of the Court under Section 35G of the Central Excise Act.
4. Failure of the departmental representative to oppose contentions.
5. Allegation of non-consideration of arguments by the Tribunal.
6. Applicability of precedents and need for proper remedy.

1. Delay in filing the appeal:
The judgment begins by acknowledging a delay of 22 days in filing the appeal, which is then condoned due to the nature of the order proposed to be passed.

2. Classification of services as Cargo Handling Service:
The Appellant challenges an order by the Tribunal, which held that the services provided did not qualify as a Cargo Handling Service. This decision resulted in setting aside the service tax demand for a specific period along with interest and penalty.

3. Jurisdiction under Section 35G of the Central Excise Act:
The Court clarifies that its jurisdiction under Section 35G of the Central Excise Act is limited to cases where a substantial question of law arises for determination. It emphasizes that this jurisdiction cannot be converted into a regular first appeal.

4. Failure of the departmental representative to oppose contentions:
The judgment highlights that the departmental representative failed to adequately oppose the contentions raised by the Respondent, which led to the Tribunal accepting those contentions and allowing the appeal. The representative's duty to protect the department's interests and revenue was emphasized.

5. Allegation of non-consideration of arguments by the Tribunal:
The Appellant alleged that the Tribunal did not consider the arguments presented by the departmental representative. However, the Court noted that the Tribunal's order sheet and recitals are crucial in determining what transpired during the proceedings. It suggested that if the Appellant believed its arguments were not considered, the proper remedy would be to address the Tribunal first.

6. Applicability of precedents and need for proper remedy:
The judgment refers to a legal precedent emphasizing the importance of judicial records and the finality of statements made by judges in their judgments. It stresses that parties must address any discrepancies in the record promptly. Ultimately, the Court declined to entertain the appeal in its current form and dismissed it.

This detailed analysis of the judgment covers the issues related to the delay in filing the appeal, the classification of services, the Court's jurisdiction, the representative's failure to oppose contentions, the allegation of non-consideration of arguments, and the importance of following proper legal remedies.