Bombay High Court
Sodexo India Services Private ... vs The Union Of India And Ors on 13 July, 2021
Bench: G. S. Kulkarni
14.WP2693_2021
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2693 OF 2021
Sodexo India Services Pvt. Ltd. .. Petitioner
vs.
The Union of India & Ors. .. Respondents
Mr. Prasad Paranjape i/b. PDS Legal for the petitioner.
Mr. Pradeep Jetly, Senior Advocate a/w. Mr. Dhananjay B. Deshmukh for
the respondent nos. 1 to 4.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
Date :- July 13, 2021.
PC :
1. An order in Appeal No. NA/GST/A-III/MUM/16/2021-22 dated May
10, 2021 is the subject matter of challenge in this writ petition.
2. The sole ground on which challenge is laid by Mr. Paranjape, learned
advocate for the petitioner to such appellate order is that the Appellate
Authority, i.e., Commissioner (Appeals-III), GST & CX, Mumbai felt not to
be bound by the decision dated April 12, 2018 of the Regional Bench of the
Customs, Excise and Service Tax Appellate Tribunal at Allahabad in the
case of M/s. ICS Foods Pvt. Ltd. vs. Commissioner of Service Tax, Noida
on the ground that the department had elected to carry the said order in an
appeal before the Supreme Court and hence the said decision had not
14.WP2693_2021
attained finality. It has been brought to our notice by Mr. Paranjape that
although the matter could not be placed before the Commissioner
(Appeals-III) at the time of hearing, but later in the evening, the petitioner
had mailed a copy of the order dated January 3, 2019 passed by the
Supreme Court in Civil Appeal No. 43505 of 2018 whereby the appeal
preferred by the Commissioner of Service Tax, Noida challenging the
judgment and order dated April 12, 2018 of the Customs, Excise and
Service Tax Appellate Tribunal stood dismissed. According to him, this is
sufficient reason for setting aside the impugned appellate order.
3. Mr. Jetly, learned senior advocate appearing for the respondents,
does not dispute that the decision of the Customs, Excise and Service Tax
Appellate Tribunal dated April 12, 2018 has since attained finality with the
dismissal of the appeal preferred thereagainst by the Commissioner of
Service Tax, Noida. He, however, submits that the petitioner has a further
remedy of appeal before the Additional Secretary and the point which is
sought to be urged before us by the petitioner can also be urged before
such secretary.
4. We do not see reason to relegate the petitioner to the appellate
remedy at this stage. In our opinion, interest of justice would be
sufficiently served if a limited remand is ordered to the Commissioner
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(Appeals-III) for revisiting his decision based on the circumstance that the
decision of the Customs, Excise and Service Tax Appellate Tribunal dated
April 12,2018 in the case of ICS Foods Pvt. Ltd. (supra) has since attained
finality. If indeed the said decision has applicability to the facts and enures
to the benefit of the petitioner, the Commissioner (Appeals-III) shall be at
liberty to pass an appropriate order reversing his earlier decision which is
impugned before us. However, if even after consideration of the decision in
ICS Foods Pvt. Ltd. (supra) there is no change in the final outcome, the
Commissioner shall be at liberty to pass a fresh order, whereafter the
petitioner may have to pursue his remedy in appeal before the Additional
Secretary.
5. With this direction, the writ petition stands disposed of. No costs.
6. All contentions on merits limited to the remand, as ordered, are kept
open.
7. Needless to observe, the Commissioner (Appels-III) shall make
honest endeavour to pass an order upon remand as early as possible but
preferably within one month.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
