2018 (12) TMI 1430 - HC - Service Tax

Manufacture or service - catering services - validity of assessment order - Section 35G of the Central Excise Act, 1994 - Held that - The issue is decided in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI I VERSUS M/S. TAJ SATS AIR CATERING LTD., SKY GOURMET CATERING SERVICES PVT. LTD., MR. GANESH CHATURVEDI, MR. MANISH CHIRANEWAL 2018 (3) TMI 852 - BOMBAY HIGH COURT , where it was held that A party should not be left guessing nor a higher court speculating as to whether the tribunal decided the matter by holding that the activity amounts to manufacture and yet not sustained the demand in terms of the adjudication order on the ground of limitation. Precisely, that has happened in this case. The impugned order dated 10th August, 2018 of the Tribunal is set aside to the extent it relates to the Appellant and restore the issue before the Adjudicating Authority for fresh consideration and disposal, in accordance with law, qua the present Respondent alone - appeal disposed off.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1994 challenging the order of the Customs, Excise & Service Tax Appellate Tribunal, setting aside the impugned order and restoring the issue to the Adjudicating Authority for fresh disposal.

Analysis:
The High Court of Bombay heard an appeal filed by the Revenue under Section 35G of the Central Excise Act, 1994, challenging the order of the Customs, Excise & Service Tax Appellate Tribunal dated 10th August, 2018. The Tribunal's order was a common order disposing of appeals, including the case of M/s. Taj State Air Catering Ltd. v/s. Sky Gourmet Catering Services Ltd. The High Court noted a previous order dated 12th March, 2018, in a related case where it was observed that the tribunal erred in not completely deciding the matter and remanding it to the Commissioner by rendering a partial conclusion. The High Court emphasized the importance of conclusively deciding the matter or remanding it back for fresh adjudication. It was clarified that confusion attributable to the Revenue and the adjudicating authority made it inappropriate to impose a penalty unless there was absolute proof of duty leviability as demanded by law. The High Court set aside the impugned order of the Tribunal and restored the issue before the Adjudicating Authority for fresh consideration and disposal in accordance with the law.

The High Court found the facts and law in the present case to be identical to a previous Central Excise Appeal filed by the Revenue in the case of M/s. Taj States Air Catering Ltd. Therefore, following the same reasoning, the High Court set aside the impugned order of the Tribunal to the extent it related to the Appellant and restored the issue before the Adjudicating Authority for fresh consideration and disposal specifically concerning the present Respondent. The Appeal was disposed of in these terms, with no order as to costs.

This judgment highlights the importance of conclusively deciding matters or remanding them for fresh adjudication, especially in cases where confusion exists due to incomplete decisions. It underscores the need for absolute proof of duty leviability before imposing penalties and emphasizes that all contentions of both sides should be kept open for a fair and just resolution. The High Court's decision ensures that the issue is properly reconsidered and disposed of in accordance with the law, maintaining the principles of natural justice and legal correctness.