CGST, CE & CC Delhi-I Versus Mr. Satish Mohindra, Mr. Abhinav Sharma, Mr. Indira Khandelia, Mr. Narender Kumar, Mr. Deepak Tomar
Service Tax
2018 (2) TMI 1448 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 21-2-2018
Service Tax Appeal No. ST/51722-51727/2017-ST [SM] – Final Order No. 50718-50723/2018
Service Tax
Hon'ble Mr. S.K. Mohanty, Member ( Judicial )
Mr. K. Poddar, DR for the Appellant
Mr. Satish Mohinders & Mr. Narender Kumar, (Advocates) of the Respondent
ORDER
Per S. K. Mohanty
In these appeals, Revenue has assailed the impugned order on the ground that placing reliance on the judgment dated 03.06.2016 of the Hon'ble Delhi High Court in W.P.(C) No. 2235/2011 and W.P. (C) No. 2971/2011 in the matter of Suresh Kumar Bansal and Others in the impugned order is not legal and proper, inasmuch as the said judgment was not “in rem”, rather it was “in-personnem”. Thus, the Revenue contented that the issue decided in the case of Suresh Kumar Bansal
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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 that the ratio of the judgment dated 03.06.2016 cannot be applicable in-personnem inasmuch as the same has been delivered in absolute on all unequivocal terms. The appeals were rejected on the ground that the Department has not accepted such decision of the Hon'ble Delhi High Court and has filed appeal before the Hon'ble Supreme Court. Thus, he has held that unless the issue is resolved by the Hon'ble Apex Court, the appellants should not succeed for the refund claim. The relevant findings recorded in the impugned order are extracted herein below:-
“A careful perusal of the above judgment very clea
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hich 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 petitioners who filed the instant writ petition.
However, as observed herein above, the basic temporal condition which is of paramount importance here, is that the verdict so delivered must attain finality in order to make it applicable in general. The impugned order very clearly states that the department has challenged the above order of Hon'ble High Court before the Hon'ble Supreme Court wherein it has been asserted that the levy is not ultravires to the Constitution of India. This means that the question of law as decided vide above judgment of the Hon'ble High Court of Delhi has not been a
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