2017 (8) TMI 1487 - HC - Service Tax

Maintainability of appeal - order in original was set aside - Cenvat Credit - Held that - Since the order-in-original passed by the CESTAT, EZB, dated 23-12-2015 has been set aside by this Court vide order dated 30-8-2016 in OTAPL No. 5 of 2016, the present appeal has become infructuous and we find no basis for entertaining the same - the OTAPL is dismissed as infructuous.

Summary

Issues:
Challenge to appellate tribunal order, maintainability of appeal, rectification petition rejection, communication failure, infructuous appeal.

Challenge to Appellate Tribunal Order:
The appeal was filed by the Revenue challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and seeking restoration of the original order passed by the Commissioner. The respondent contended that the appeal was not maintainable as an earlier appeal by them had been allowed by the High Court, setting aside the CESTAT order and directing a deposit for pre-entertainment of the appeal.

Maintainability of Appeal:
The respondent argued that the present appeal by the Revenue was not maintainable due to the High Court's previous order allowing the respondent's appeal against the CESTAT order. The High Court had directed a deposit by the respondent for the appeal to be entertained, and the matter was pending before the CESTAT at the time of the present appeal filing.

Rectification Petition Rejection:
The Revenue had filed a petition for rectification before the CESTAT, which was subsequently rejected. This rejection was communicated to the Revenue, and the filing of the present appeal by the Revenue was within the mandated 180 days for such filings.

Communication Failure:
The Revenue, represented by Sri Satpathy, acknowledged a lack of communication regarding the respondent's appeal against the original CESTAT order. This lack of communication led to the Revenue's unawareness of the respondent's appeal when filing the instant appeal.

Infructuous Appeal:
The High Court, considering the setting aside of the original CESTAT order by the High Court in the respondent's appeal, deemed the present appeal by the Revenue as infructuous. With the original order being set aside, the basis for entertaining the Revenue's appeal was found lacking, leading to the dismissal of the appeal as infructuous.

The High Court dismissed the appeal by the Revenue as infructuous due to the setting aside of the original CESTAT order in the respondent's appeal. The lack of communication regarding the respondent's appeal, the rejection of the rectification petition, and the subsequent setting aside of the original order all contributed to the High Court's decision. The maintainability of the appeal was questioned by the respondent, citing the High Court's previous order allowing their appeal and directing a deposit for further proceedings. The communication gap and the subsequent developments rendered the Revenue's appeal unnecessary, leading to its dismissal.