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TMI Blog2024 (4) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... t case flouted the orders of the Appellate Collector on the ground that the order of the Appellate Collector were not acceptable to the department. The assessee filed a Writ Petition before the Bombay High Court which passed strictures against the Assistant Collectors. Union of India filed an appeal before the Supreme Court which upheld the strictures passed by the Bombay High Court. Evidently, in this case, the Commissioner (Appeals) has refused to follow judicial discipline on the ground that the order of this Tribunal on the ground that it has not been accepted by the department. The very statement that a judicial decision is not acceptable is an objectionable phrase as held by in Kamlakshi Finance and the Commissioner (Appeals) was boun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004 [CCR] read with Notification No. 5/2006-CE (NT) dated 14.3.2006. 4. The applications were rejected by the Assistant Commissioner by order dated 26.2.2010 on the following grounds : (a) the service was not business auxiliary service during the material period; (b) it does not qualify as export of service under the Export or Service Rules, 2005; (c) the services on which the Cenvat credit was taken do not qualify as input services and (d) that the correlation between the exporter s invoices and the foreign exchange received could not be established. 5. The appellant appealed to the Commissioner (Appeals), who, by his order dated 1.12.2011, upheld the order of the Assistant Commissioner. On appeal, this Tribunal, by order dated 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 4.8.2016 of this Tribunal followed the previous decision of the Tribunal in Paul Merchants Ltd. vs Commissioner of Central Excise, Chandigarh [Final Order No. ST/A/50780/2014-CU (DB) dated 28.2.2014] ; (iv) the decision of this Tribunal in Paul Merchants Ltd . was appealed by the Revenue before Supreme Court in Civil Appeal No. 6556 of 2015 which is pending; (v) the appeal may be rejected and the impugned order may be upheld. 9. We have considered the submissions advanced by the learned consultants for the appellant and the learned authorised representative for the Revenue and perused the records. 10. The undisputed fact is that the appellant had provided services to M/s. GAP International. It was registered with the service tax for provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not acceptable to the department. The assessee filed a Writ Petition before the Bombay High Court which passed strictures against the Assistant Collectors. Union of India filed an appeal before the Supreme Court which upheld the strictures passed by the Bombay High Court. The relevant portions of this judgment of the Supreme Court are reproduced below: 5. The learned Additional Solicitor General, however, submits that the learned Judges have erred in passing severe strictures against the two Assistant Collectors who had dealt with the matter. He submitted that these officers had given reasons for classifying the goods under Heading 39.19 and not 85.46 and could do no more. He submitted that they acted bona fide in the interests of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee s contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S. 35E(1) or (2) to keep the interests of the department alive. If the officer s view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, because it has been suggested by the learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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