2021 (2) TMI 1036 - HC - Service Tax

Reopening of matter - case closed for the purpose of statistics holding that the both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon'ble High Court or in case of any change of circumstance - applicability of provisions of Section 35C of the Central Excise Act, 1944 - HELD THAT - The writ petitions were heard by the learned Single Bench and by order dated 09.03.2012, this Court directed that the personal hearing of the respondent-assessee scheduled to be held on 09.03.2012, shall not go on until further orders. When this matter was brought to the notice of the Tribunal, the Tribunal has disposed of the appeal by the impugned order with liberty to the parties to file an application to reopen the matter - the correct approach would be to keep the appeal pending before the Tribunal, because the interim order is only to the effect that the personal hearing should not go on. The appeal may be kept pending before the Tribunal and should not be disposed of till the writ petitions are disposed of in one way or another or if any interim orders are passed in the writ petitions - The substantial question of law is answered in favour of the Department and the appeal is restored to the file of the Tribunal awaiting the orders passed in the writ petitions, either interim or final orders.

Summary

Issues:
1. Appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai.
2. Substantial questions of law raised by the appellant regarding the correctness of the CESTAT's order.
3. Writ petitions filed by the respondent-assessee challenging the provisions of the Finance Act, 1994.

Analysis:
1. The appellant filed an appeal under Section 35G of the Central Excise Act against the order of CESTAT. The appellant raised substantial questions of law questioning the correctness of CESTAT's decision to close the case for statistics, allowing parties to reopen it later. The High Court held that the appeal should be kept pending before the Tribunal, as the interim order only pertained to the personal hearing and not the appeal itself.

2. The respondent-assessee had filed writ petitions challenging certain provisions of the Finance Act, 1994. The High Court noted that the writ petitions were pending before a Division Bench and emphasized that the appeal should remain pending before the Tribunal until the writ petitions are disposed of. The High Court allowed the appeal, set aside the impugned order, and restored the appeal to the Tribunal, awaiting the outcome of the writ petitions.

3. The High Court found that the correct approach was to keep the appeal pending until the writ petitions were resolved, either through interim or final orders. The High Court's decision was based on ensuring consistency and coherence between the appeal and the ongoing writ petitions. The High Court's judgment favored the Department, setting aside the CESTAT's order and emphasizing the importance of awaiting the resolution of the writ petitions before finalizing the appeal.