Whether an order can be passed without considering the application filed by petitioner?

PJ/Case Law/2014-15/2371

Case:-SVC CABLE NET VS CESTAT,BANGLORE

Citation:-2014 (33) S.T.R. 144 (A.P.)

Brief facts:-The petitioner was engaged in the business of providing Multi-System Operator (MSO) services to the Cable Operators. By the Order-in-Original, dated 30-9-2010 the Commissioner of Customs and Central Excise, Tirupathi determined the liability of the petitioner to pay Rs. 2,61,17,081/- towards Service Tax and Educational Cess under Section 73(1) of the Finance Act, 1994 for the period from September, 2004 to December, 2008 apart from the penalty equal to the service tax amount.
Challenging the said order, the petitioner filed Appeal No. 222 of 2011 before the Customs, Excise and Service Tax Appellate Tribunal, Southern Region, Bangalore along with Application No. 105 of 2011 for waiver of pre-deposit and stay of the order dated 30-9-2010. The said Stay Application No. 105 of 2011 was disposed of by the CESTAT by order dated 9-7-2013 directing that the petitioner shall remit the entire assessed liability to the credit of the revenue within eight (8) weeks and shall report compliance by 8-11-2013. Aggrieved by the said order, the present Writ Petition was filed.

Appellant’s contentions:- The learned Senior Counsel appearing for the petitioner pointed out that in fact the application filed by the petitioner for receiving additional evidence containing all the relevant facts to establish that the demand of Service Tax under the order dated 30-9-2010 is unsustainable and another application to raise additional grounds were listed before the Tribunal below on 9-7-2013, however the Tribunal proceeded with the petition for stay though it was not listed and passed the impugned order dated 9-7-2013 directing to remit the entire amount assessed.

Respondent’s contentions:- Learned Senior Counsel on the other hand submitted that the Appellate Tribunal ought not to have gone into the merits of the case at this stage and at any rate as the reasons given in the impugned order are not at all germane for consideration of the application filed under Section 35F of the Central Excise Act, the impugned order is unsustainable and is liable to be set aside.

Reasons of judgment:-On careful consideration of the submissions made by both sides, the Tribunal below passed the impugned order dated 9-7-2013 on Stay Application No. 105 of 2011 and in view of the said order and for the reasons recorded therein, Miscellaneous Application filed for receiving additional evidence was also dismissed. Having regard to the admitted fact that the petitioner’s application to receive the additional evidence and additional grounds are also numbered and in fact the said applications were listed for hearing on 9-7-2013 it appears to us that the Tribunal below ought to have considered the same and passed orders thereon before taking up the Stay Application. In the facts and circumstances of the case, we find force in the submission of the learned counsel for the petitioner that non-consideration of the petitioner’s application to receive the additional evidence in spite of the fact that it is listed for hearing, caused grave prejudice to the case of the petitioner
In the light of the admitted facts, we consider it appropriate to set aside the impugned orders dated 9-7-2013 passed in Stay Application No. 105 of 2011 and the other Miscellaneous Applications and direct fresh consideration of the said applications in the light of the observations made above.

Decision:-Petition allowed.

Comment:- The analogy drawn from the case isthat non-consideration of the petitioner’s application to receive the additional evidence in spite of the fact that it is listed for hearing, causes grave prejudice to the case of the petitioner. Hence, no orders shall be passed without considering miscellaneous applications of the petitioner.

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PJ/Case Law/2014-15/2371

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