2019 (8) TMI 636 - HC - Service Tax

Applicability of Section 35H of CEA 1944 - Invocation of of Section 83 of the Finance Act, 1994 - whether Section 35H is in existence or stands deleted - HELD THAT - What Mr. Pathy, canvasses is that once the division bench judgment of the Tribunal whereby the claim of the petitioner had been negated, was overruled by the larger bench, the petitioner became entitled to his reliefs. We would not express ourselves on this submission because before us, the petitioner seeks a direction to the Tribunal to refer the substantial question of law which is raised in the case. Now besides the fact that Section 35H providing for such reference stands deleted, the other prayer also cannot be entertained because the very judgment rendered by the Tribunal in the case of the petitioner has been overruled by a larger bench. In other words, the issue before us is prima facie rendered academic. The submission of Mr. Pathy is that the issue is not actually rendered infructuous rather has been answered in favour of the petitioner by the larger bench - Mr. Pathy prays for disposal of the matter to enable the petitioner to take recourse to such remedy that may be available to him in law for espousing the grievance in the light of the position settled by the larger bench Tax case disposed off.

Issues:
1. Interpretation of provisions of Section 83 of the Finance Act, 1994 and Section 35H of the Central Excise Act, 1944.
2. Validity of the tax case filed invoking the above provisions.
3. Impact of the deletion of Section 35H of the 1944 Act on the case.
4. Consideration of Tribunal judgments and the effect of a larger bench decision on the petitioner's claim.
5. Request for reference of substantial question of law and its implications post the larger bench decision.

Analysis:
1. The judgment delves into the interpretation of Section 83 of the Finance Act, 1994, and Section 35H of the Central Excise Act, 1944. It notes that although Section 83 recognizes provisions in Section 35H, the latter stands deleted. The petitioner argued that the issue pertains to a period when Section 35H was in force, but at the time of filing in 2010, it was no longer applicable.

2. The Court considered the validity of the tax case filed under the provisions mentioned above. It observed that the judgment and order of the Tribunal rejecting the petitioner's claim were revisited by a larger bench due to conflicting opinions within the Tribunal. The larger bench overruled the previous decision, impacting the petitioner's entitlement to relief.

3. Addressing the impact of the deletion of Section 35H on the case, the Court stated that the issue became academic post the larger bench decision. The petitioner's request for a reference of substantial legal questions was deemed inapplicable as Section 35H was deleted, and the Tribunal's judgment had been overturned by the larger bench.

4. The judgment highlighted the significance of the larger bench decision in favor of the petitioner. It emphasized that the issue was not rendered infructuous but resolved in the petitioner's favor by the larger bench. The Court disposed of the case, allowing the petitioner to pursue further legal remedies based on the larger bench's decision.

5. The petitioner's counsel sought the disposal of the matter to enable the petitioner to explore available legal remedies following the larger bench decision. The Court, not expressing an opinion on the reference plea, granted the petitioner the liberty to pursue remedies in light of the larger bench decision, with no objection from the Department's Senior Counsel.

This detailed analysis of the judgment provides a comprehensive understanding of the issues addressed, the legal interpretations made, and the implications of the larger bench decision on the petitioner's case.

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