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TMI Blog2010 (5) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Although both the matters were considered to be a case of public sector on first impression and passed order to adjourn the matters to 13-9-2010 to get COD clearance, Shri Anil Kumar Goel appearing for the appellant submits that this Bank is not a public sector for which no COD clearance is required. He clarifies that there is no shareholding by the Government of India to call this bank as public sector. Taking the averment of the authorised representative, both appeals are taken together for disposal in view of common issue involved. 2. While filing the appeal, the appellants have filed stay applications in both the cases. In appeal case No. ST/292/2010 there is a service tax demand of Rs. 7,136 and in respect of appeal No. 294/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible under law if there is any excess amount paid during a return period against the demand arising against different such period. While doing so, Tribunal s Order in the case of Bharat Cellular Ltd. v. CCE [2005] 2 STT 266 (New Delhi - CESTAT) dealing with such a situation may be looked into. 5. It may be stated that procedural law should not dominate or over power substantive rights and substantial justice. Hon ble Supreme Court in the case of Shaikh Salim Haji Abdul Khayumsab v. Kumar AIR 2006 SC 396 held in paras 13, 14, 15 16 as under : 13. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. 6. When the Rules are subordinate to the legislation, that should not act as master to deprive the deserved, who may be considered for grant of appropriate adjustment of the excess tax paid. The Adjudicating authority shall workout the modality as permissible under law to settle the dispute at its level in both cases. 7. Consequently, both appeals are remanded to the ld. Adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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