2017 (2) TMI 842 - AT - Service Tax

Restoration of appeal - appeal was dismissed summarily on the ground that the amount involved in the appeal was less than 10, 00, 000/- - Held that - the issue involves classification and the subject activities of respondent are continuing one therefore issue of classification becomes a recurring one which is covered under Para 3 sub-clause c of the original C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC dated 17-8-2011 introduced vide Instruction F. No. 390/Misc./163/2010-JC dated 17-12-2015 - Revenue s application for restoration of appeal on account of this prima facie mistake has to be restored to its original place and deserves to be decided on merit - appeal restored - decided in favor of appellant.

Summary

Issues involved: Restoration of appeal dismissed summarily under the new Litigation Policy for being below the monetary limit of ?10,00,000, classification of service as 'Goods Transport Agency Service,' recurring nature of the issue, applicability of exceptions under the Litigation Policy, power of the Tribunal to withdraw an order if justice demands, mistake apparent on the face of the record.

Analysis:

1. Restoration of Appeal:
The applicant/appellant filed a miscellaneous application seeking restoration of an appeal dismissed by the Tribunal under the new Litigation Policy due to the amount involved being less than ?10,00,000. The Department argued that the issue pertained to the classification of service, which was of a recurring nature and thus warranted a decision on merit. The Tribunal considered the facts and submissions from both sides.

2. Classification of Service:
The learned Counsel for the assessee contended that the issue was not about classification but the 'taxability' of operations. However, upon careful consideration, the Tribunal found that the subject order was a collective order summarily dismissing appeals below the monetary limit as per the Litigation Policy. The Department's application highlighted the recurring nature of the classification issue regarding the activity undertaken by the assessee as a 'Goods Transport Agency Service.'

3. Recurring Nature of the Issue:
The Tribunal observed that the issue of classification was recurring as the respondent's activities were continuous. This recurring nature fell under the exceptions mentioned in the Litigation Policy, allowing for the appeal to be decided on merit despite the monetary limit. Citing relevant case laws, the Tribunal emphasized the need to address classification issues of legal and recurring nature irrespective of the monetary amount involved.

4. Mistake Apparent on the Face of the Record:
The Tribunal noted that the Revenue's application highlighted a prima facie mistake in the order dismissing the appeal, which warranted restoration for a decision on merit. Referring to legal precedents, the Tribunal asserted that the power to withdraw an order exists when a mistake is apparent on the face of the record, as in this case concerning the classification issue.

5. Decision and Order:
Based on the discussions and case laws, the Tribunal ordered the restoration of the appeal to its original number for a decision on merits. The Tribunal clarified that the restoration was not a review of the previous order but a correction of a prima facie error brought to its attention by the Revenue through the miscellaneous application.

In conclusion, the Tribunal's detailed analysis and application of legal principles resulted in the restoration of the appeal for a thorough examination of the classification issue, emphasizing the importance of addressing recurring legal issues despite monetary limits under the Litigation Policy.