2013 (12) TMI 1074 - AT - Service Tax

Recall of order - Held that - Judgment in ONGC 1991 (10) TMI 58 - SUPREME COURT OF INDIA has been recalled/rescinded ab-initio or that the procedure mandated thereunder has suffered a retrospective eclipse in view of the subsequent judgment in Electronic Corporation of India Ltd. (2011 (2) TMI 3 - Supreme Court). It appears that the Hon ble Supreme Court on a realization of the fact that the mechanism of Committee on Disputes having failed and outlived its utility, the said mechanism should be eschewed - Since the petitioner has failed to obtain clearance of Committee on Disputes during currency of the requirement during the operation of the ONGC judgment and is seeking recall of our order dated 10/07/2007, 5 years later and without complying with the condition imposed therein, we find no justification for recalling the appeal to file. This Tribunal is required to adjudicate within the framework of the law - Recall of order denied.

Summary

Issues:
Restoration of appeal and stay application, clearance from Committee on Disputes, service tax liability on interconnection usage charge, recall of ONGC judgment, revival of appeal based on Supreme Court decision.

Analysis:
The judgment revolves around the application filed by BSNL seeking restoration of their appeal and consideration of the related stay application, which were dismissed due to non-compliance with the requirement of obtaining clearance from the Committee on Disputes. The petitioner argued for revival of the appeal based on the Supreme Court's observation in Electronic Corporation of India Ltd. that the mechanism formulated in the ONGC decision had outlived its utility. However, the Tribunal noted that the petitioner failed to obtain clearance from the Committee on Disputes during the operation of the ONGC judgment and sought recall of the order five years later without complying with the conditions imposed. The Tribunal emphasized the need to adjudicate within the framework of the law and found no justification for recalling the appeal, ultimately dismissing the application.

The petitioner contended that the levy of service tax on interconnection usage charge under telecommunication service provided by one operator to another was not sustainable, citing relevant Board Circulars and statutory provisions. The petitioner asserted a strong prima facie case on merits in their appeal. However, the Tribunal clarified that in the present application, they were not concerned with the merits of the appeal but rather with the procedural aspect of obtaining clearance from the Committee on Disputes. Despite the petitioner's arguments, the Tribunal highlighted that there was no indication that the ONGC judgment had been recalled or that the mandated procedure had been invalidated by the subsequent Supreme Court decision.

In conclusion, the Tribunal emphasized the importance of complying with procedural requirements and upheld the dismissal of the appeal restoration application. The judgment underscored the necessity of abiding by legal frameworks and declined to revive the appeal based on the petitioner's failure to adhere to the conditions set forth in the previous order. The Tribunal's decision was based on the lack of justification for recalling the appeal and the need to operate within the established legal parameters, ultimately leading to the dismissal of the restoration application.