2018 (2) TMI 1496 - HC - Central Excise

Validity of Remand order - issue pending before Larger Bench - taxability service under the taxing entry Cargo Handling Services . Held that - the issue pending for decision of the Larger Bench is involved in all these appeals and the Tribunal, therefore, could not have remanded the matter back to the Adjudicating Authority, but should have waited for decision of the Larger Bench. The order impugned cannot, therefore, be sustained and it will have to be quashed. The common order dt.7.4.2017 which is impugned in all these appeals remanding the matter to the Adjucating Authority, passed by the Tribunal is hereby quashed and set aside. The matter is remitted back to the Custom, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai to wait for the decision of the Larger Bench on the issue involved.

Summary

Issues:
Challenge to order remanding appeals for fresh decision on merits by Customs, Excise and Service Tax Appellate Tribunal; Question of taxability of service under "Cargo Handling Services" pending for decision of Larger Bench.

Analysis:
The judgment by the High Court of Bombay dealt with the challenge to a common order passed by the Customs, Excise and Service Tax Appellate Tribunal remanding appeals for a fresh decision on merits. The Tribunal remanded the appeals to the Adjudicating Authority without considering the aspect of the "Coal Supply Agreement" between the parties. The High Court noted that the Tribunal failed to apply its mind to this aspect and should have awaited the decision of the Larger Bench on the issue. The High Court observed that the Tribunal's order was unsustainable, and thus, the appeals were partly allowed.

The High Court emphasized that the loading and unloading of coal was not covered by "Cargo Handling Services," as confirmed by the respondent's counsel. Consequently, the issue pending for the decision of the Larger Bench was deemed to be involved in all the appeals. The High Court concluded that the Tribunal erred in remanding the matter back to the Adjudicating Authority and should have awaited the Larger Bench's decision. Therefore, the High Court quashed and set aside the impugned order, remitting the matter back to the Tribunal to await the Larger Bench's decision on the issue involved.

The High Court clarified that the point covered by the first paragraph of the impugned order would not be reopened as accepted by the department. Additionally, the High Court did not delve into the question of whether the loading and unloading of coal fell under "Cargo Handling Services" or if the respondent was liable to pay service tax, leaving these questions open for subsequent adjudication. The judgment concluded by stating that no costs were awarded in the matter.