2018 (2) TMI 1448 – CESTAT NEW DELHI – TMI – Applicability of decision in the case Suresh Kumar Bansal and Others [2016 (6) TMI 192 – DELHI HIGH COURT] – claim of Revenue is that impugned order is not legal and proper, inasmuch as the said judgment was not “in rem”, rather it was “in-personnem” – Construction services – Held that: – the ld. Commissioner (Appeals) has taken the correct stand in deciding the appeals of the appellants – From the operative part of the impugned order, it transpires that there was no need for the Revenue to file any appeal against the impugned order, for the reason that the appeals of the appellant in context with the refund application were rejected by the ld. Commissioner (Appeals), especially in view of admittance of appeal by the Hon’ble Supreme Court – appeal dismissed – decided against Revenue.
– Service Tax Appeal No. ST/51722-51727/2017-ST [SM] – Final Order No. 50718-50723/2018 – Dated:- 21-2-2018 – Hon'ble Mr. S.K. Mohanty, Member ( Judicial
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on 65(105)(zzzh) of the Finance Act, 1994. The appellants have filed the application on the ground that the agreement entered into between them and the builders are composite contract for purchase of immovable property and accordingly, in absence of specific provision for ascertaining the service component of the said agreement, the levy would be beyond the legislative competence. However, the refund application was rejected by the original authority on the ground the appellants were not the petitioners in the above referred writ petitions and thus, the said judgment dated 03.06.2016 passed by the Hon ble Delhi High Court cannot be made applicable to the applicants inasmuch as, it was in-personnem , which is binding upon the parties, on whose behalf the judgment was delivered. On appeal, the ld. Commissioner (Appeals) vide the impugned order dated 05.06.2017, has upheld the original order and rejected the appeals filed by the appellants. However, the Commissioner (Appeals) has held tha
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concerned, I do not feel myself in agreement with the same because the verdict has been given in absolute and unequivocal terms. There in not denying that the said writ petition has been filed by certain individual buyers of under construction flats, yet its connotation are such that it has wide ranging effects on all such buyers especially when they are stuck in similar situation. It is an established principle that any judgment of the court on any particular issue, if it has attained finality, should be the guiding factor which must be followed unscrupulously. While deciding any give issue, which stands settled by virtue of a decree and the said decree in every sense of legal parameters has attained finality cannot be ignored merely on the ground the petitioner is different. I therefore, do not agree with this opinion of original authority that the said judgment of the Hon ble High Court cannot be made applicable in the case of all these appellants who do not figure amongst those pet
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ce forbids that any consequential relief arising on account of the same cannot be given to the appellants especially when the Hon ble Supreme Court has admitted the appeal of the department. 4. On perusal of the impugned order, I find that the ld. Commissioner (Appeals) has taken the correct stand in deciding the appeals of the appellants. From the operative part of the impugned order, it transpires that there was no need for the Revenue to file any appeal against the impugned order, for the reason that the appeals of the appellant in context with the refund application were rejected by the ld. Commissioner (Appeals), especially in view of admittance of appeal by the Hon ble Supreme Court. 5. In view of the above, I do not find any merits in the appeals filed by Revenue. Therefore, the same are dismissed. ( Pronounced in the open court on 21. 02. 2018 ) – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxmanagementindia.com –
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