2008 (8) TMI 139 - AT - Service Tax

Application for rectification of mistake - applicant seeks review of the stay order on the ground of non-consideration of relied upon decision of Tribunal held that a speaking order having been passed, after full hearing, rightly or wrongly, the remedy of the applicant was/is by way of a writ petition, in the High Court - and the subsequent order of the co-ordinate Bench cannot be a ground for review of the order. In the circumstances, application is rejected

Summary

Issues:
1. Review of stay order based on the decision in another case.
2. Consideration of a third member bench decision.
3. Remedies available to the applicant.
4. Extension of the period for depositing the amount.

Analysis:
1. The judgment deals with an application filed for the rectification of a mistake under Section 35C(2) of the Central Excise Act, 1944, which was essentially a review of a stay order dated 25-4-2008. The applicant sought a review based on a decision in the case of M/s. Alstom Projects India Limited, where full waiver of pre-deposit was granted. The applicant also referenced a three-member bench decision in the case of Jyoti Limited v. CCE, Vadodara. However, the tribunal clarified that the decision in Jyoti Limited was rendered by a third member, not a three-member bench. Despite this, the tribunal held that a speaking order had been passed after full hearing, and the appropriate remedy for the applicant would be a writ petition in the High Court, rather than seeking a review based on subsequent orders by a co-ordinate bench. The application for review was rejected on these grounds.

2. The tribunal discussed the consideration of a third member bench decision in the case of Jyoti Limited v. CCE, Vadodara. While acknowledging the decision, the tribunal highlighted that a decision by a third member in a case of difference of opinion may not be considered a decision by a three-member bench. However, the tribunal referred to a Delhi High Court decision indicating that a case decided on a difference of opinion by a third member could be viewed as a decision by a three-member bench. Despite this discussion, the tribunal ultimately rejected the application for review based on other grounds.

3. The judgment also addressed the remedies available to the applicant, emphasizing that a speaking order had been passed after full hearing. The tribunal noted that the appropriate remedy for the applicant, whether rightly or wrongly decided, would be through a writ petition in the High Court. The tribunal clarified that subsequent orders by a co-ordinate bench could not serve as grounds for a review of the original order. Therefore, the application for review was rejected, and the tribunal directed the applicant to pursue the appropriate legal remedy if desired.

4. Following the decision to reject the application for review, the tribunal granted an extension of two weeks for the applicant to comply with the order dated 25-4-2008. The extension was provided as the applicant had filed the application in good faith and under legal advice. The tribunal set a deadline of 14-8-2008 for the applicant to deposit the required amount. Additionally, the tribunal directed that the appeal be listed for hearing along with the case of M/s. Alstom Projects India Limited, indicating procedural steps to be followed post the judgment.