2017 (11) TMI 1521 - HC - Service Tax

Restoration of application for stay - Held that - While deciding the application for stay, the Appellate Tribunal always could have gone into the question whether prima facie there is any merit in the appeal. However, from the impugned order, we find that the Appellate Tribunal has recorded a final finding on merits of the appeal by holding that the appeal was devoid of any merit. In fact, the Appellate Tribunal proceeded to dismiss the appeal and, consequently, the stay application was dismissed. The approach of the Appellate Tribunal is completely erroneous. What was heard before the Appellate Tribunal was the application for stay. There was no occasion for the Appellate Tribunal to go into the merits and decide the appeal itself by holding that it was devoid of any merits. The stay application will have to be restored to the file of the Tribunal.

Summary

Issues involved:
1. Time-barred appeal dismissal by Commissioner of Appeals.
2. Rejection of rectification application by Adjudicating Authority.
3. Dismissal of appeal by Commissioner (Appeals).
4. Dismissal of stay application and appeal by Appellate Tribunal.

Analysis:

1. The petitioner, Maharashtra State Road Transport Corporation, received a show cause notice for service tax, which was confirmed by the Additional Commissioner. An appeal was filed before the Commissioner of Appeals, but it was dismissed as time-barred. The petitioner then filed a rectification application before the Adjudicating Authority, which was also rejected. Subsequently, an appeal was made before the Commissioner (Appeals) and then the Customs, Excise and Service Tax Appellate Tribunal (Appellate Tribunal). The Appellate Tribunal dismissed the stay application and the appeal on the grounds of lack of merit, which was contested by the petitioner.

2. The petitioner argued that the Appellate Tribunal erred in deciding the appeal on its merits while considering the stay application. The petitioner highlighted successful appeals by other divisions of the petitioner against similar orders, indicating that no demand should be made. The respondent supported the impugned order, stating that the appeal before the Commissioner (Appeals) was limited to the order on the rectification application and was not challenged further by the petitioner. The High Court noted the erroneous approach of the Appellate Tribunal in deciding the appeal's merits during the stay application process, emphasizing that the Tribunal should have only assessed the prima facie merit for granting a stay.

3. The High Court found the Appellate Tribunal's approach to be incorrect, as the appeal was prematurely decided on its merits during the stay application review. The Court held that the Tribunal should not have conclusively determined the appeal's lack of merit during the stay application process. Consequently, the impugned order was set aside, and the appeal and stay application were directed to be reinstated before the Appellate Tribunal for proper consideration. The Court ordered the Tribunal to prioritize the hearing of the stay application due to the appeal's vintage from 2013, keeping all contentions on the merits of the stay application and appeal open for further review. The ruling concluded by quashing the impugned judgment and order, restoring the appeal and stay application to the Tribunal's file, and making no cost orders.