2018 (8) TMI 1451 – GUJARAT HIGH COURT – TMI – CENVAT credit – service tax paid on sales commission – input service or not – The Tribunal disposed of all appeals with liberty to both sides to approach the Tribunal soon after the verdict of the Hon'ble High Court in the pending appeal against the Division Bench judgement of this Tribunal in case of Essar Steel India Limited [2016 (4) TMI 232 – CESTAT AHMEDABAD] filed by the Revenue.
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Held that:- The Tribunal is a creation of statute. Section 35C(1) of the the Central Excise Act, mandates the Tribunal to dispose of the appeals on merits. It was simply not open for the Tribunal to jettison the litigation in this manner – It will be open for the Revenue /Department to file note/ application for fixing early date of hearing of Tax Appeal No.444 of 2016, as the decision on the said appeal would have direct bearing in pending appeals before the learned Tribunal, which are reported to be more than 100.
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Proceedings are remanded to t
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xcise and Customs reported in 34 STR 814 following the judgement in case of Commissioner of Central Excise, Ahmedabad vs. Cadila Healthcare (supra). The legislature subsequently added an explanation to the definition of term input service defined under the Cenvat Rules. This explanation came up for consideration before the Tribunal. Ahmedabad Bench of the Tribunal in case of Essar Steel India Ltd vs. C.C.E and S.T, Surat reported in 335 ELT 660 (Tribunal Ahmedabad) held that such amendment is clarificatory in nature and would therefore, with retrospective effect. In essence, it would cover a period prior to the date of amendment i.e. 03.02.2016 also. Such judgement has been challenged by the department before the High Court. Department's appeal is pending. 3. Pending such appeal before the High Court, large number of appeals came up for consideration before the Tribunal on this very issue. The department obviously placed heavy reliance on the judgements of High Court in cases of Co
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d. Strangely, the Tribunal adopted the third mode. The Tribunal disposed of all appeals with liberty to both sides to approach the Tribunal soon after the verdict of the Hon'ble High Court in the pending appeal against the Division Bench judgement of this Tribunal in case of Essar Steel India Limited (supra) filed by the Revenue . While doing so, the Tribunal also added needless to mention no recovery nor refund would be processed during the period . 5. For multiple reasons, we do not approve the approach adopted by the Tribunal. Dispensation of justice is not number games and should not be brought down to mere statistics. Through the mode adopted by the Tribunal all that has been achieved is to show disposal of large number of appeals and crossobjections without resolution of the disputes between the parties. This disposal is also not final and is open to reopening of all the issues. This would lead to multiplicity of proceedings. The parties, i.e. the department or the assessee,
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ssed by the Tribunal serves no other purpose. 6. The Tribunal is a creation of statute. Section 35C(1) of the the Central Excise Act, mandates the Tribunal to dispose of the appeals on merits. It was simply not open for the Tribunal to jettison the litigation in this manner. 7. The Division Bench of this Court in case of Commissioner of Central GST vs. Jay Chemicals Industries Ltd in Tax Appeal No. 767 of 2018 and connected appeals under similar circumstances passed following order: 7. In view of the above and for the reasons stated hereinabove, all these appeals succeed. The impugned common order passed by the learned Tribunal is hereby quashed and set aside and the appeals are restored to the file of the learned Tribunal and to avoid any further multiplicity of proceedings /appeals before this Court, it is directed that the appeals on remand be kept pending till the decision of this Court in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016. 8. The appeals are partl
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