2018 (2) TMI 1448 - AT - Service Tax

Applicability of decision in the case Suresh Kumar Bansal and Others 2016 (6) TMI 192 - DELHI HIGH COURT - claim of Revenue is that impugned order is not legal and proper, inasmuch as the said judgment was not in rem , rather it was in-personnem - Construction services - Held that - the ld. Commissioner (Appeals) has taken the correct stand in deciding the appeals of the appellants - From the operative part of the impugned order, it transpires that there was no need for the Revenue to file any appeal against the impugned order, for the reason that the appeals of the appellant in context with the refund application were rejected by the ld. Commissioner (Appeals), especially in view of admittance of appeal by the Hon ble Supreme Court - appeal dismissed - decided against Revenue.

Summary

Issues:
Challenge to impugned order based on applicability of a judgment, rejection of refund application, interpretation of legal principles regarding in-personnem and in rem judgments, role of appellate authority, impact of pending appeal before the Supreme Court.

Analysis:
1. Applicability of Judgment:
The Revenue challenged the impugned order, arguing that the judgment of the Hon'ble Delhi High Court relied upon was not "in rem" but "in-personnem". The issue revolved around whether the judgment in question, which held that Service Tax cannot be charged on composite contracts with builders, was applicable to the present appellants who were not the petitioners in the original writ petitions. The Revenue contended that the judgment was not binding on them as it was specific to the parties involved in the original case.

2. Refund Application Rejection:
The appellants filed a refund application based on the Delhi High Court judgment challenging the levy of Service Tax on services related to construction of complexes. The original authority rejected the application, stating that the judgment was in-personnem and thus not applicable to the appellants. The Commissioner (Appeals) upheld this decision, emphasizing that the judgment had not attained finality as the Department had appealed to the Supreme Court. The appellate authority considered the pending appeal as a crucial factor in denying the refund claim.

3. Interpretation of Legal Principles:
The Commissioner (Appeals) analyzed the nature of the judgment and its applicability. The judgment was deemed general in nature, with wide-ranging effects on all buyers in similar situations. The authority emphasized that a judgment attaining finality should be followed unscrupulously, regardless of the specific parties involved. The Commissioner disagreed with the original authority's view that the judgment was in-personnem, stating that the verdict was absolute and unequivocal.

4. Role of Appellate Authority:
The Commissioner (Appeals) played a pivotal role in upholding the original order and rejecting the appeals filed by the appellants. The authority considered the pending appeal before the Supreme Court as a significant factor in denying the refund claim, indicating that the issue needed to be resolved at a higher judicial level before granting any relief to the appellants.

5. Impact of Pending Appeal:
The decision to dismiss the Revenue's appeals was based on the Commissioner (Appeals)'s correct interpretation of the situation. The appellate authority noted that there was no merit in the Revenue's appeals, especially in light of the pending appeal before the Supreme Court. The dismissal of the appeals was deemed appropriate given the circumstances and the need for a final resolution by the higher court.

In conclusion, the judgment highlighted the importance of legal principles, the role of appellate authorities, and the impact of pending appeals on the resolution of refund claims in tax matters. The decision underscored the necessity for judicial clarity and finality before granting relief in contentious cases.