Madras High Court
The Commissioner Of Gst & Central ... vs M/S.Sterling Holiday Resorts ... on 4 February, 2021
CMA.No.1131 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
C.M.A.No.1131 of 2018
The Commissioner of GST & Central Excise,
Chennai South Commissionerate,
MHU Complex,
No.692, Anna Salai,
Nandanam, Chennai - 600 035. ...Appellant
Vs
M/s.Sterling Holiday Resorts India Ltd.,
Taurus Towers, 25, I Main Road,
United India Colony,
Kodambakkam, Chennai - 600 035. ...Respondent
Civil Miscellaneous Appeal filed under Section 35G of Central Excise
Act, read with Section 83 of Finance Act, 1944 to consider the substantial
questions of law raised by the appellant and set aside the Final Order
No.41114/2017 dated 03.07.2017 passed in Appeal No.ST/269/2007-DB
passed by the Hon'ble Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai.
For Appellant: Mr.V.Sundareswaran, SSC
For Respondent: Mr.P.R.Renganath
1/6
https://www.mhc.tn.gov.in/judis/
CMA.No.1131 of 2018
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
This appeal, filed by the appellant under Section 35G of Central
Excise Act, is directed against the order dated 03.07.2017 passed by the
Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal
Bench, Chennai in Final Order No.41114/2017.
2. The appellant has raised the following substantial questions of
law for consideration:
“1. Whether the Hon'ble CESTAT, Chennai
is correct in closing this case for the purpose of
statistics holding that the both sides are at liberty
to file application before the Tribunal to reopen
the matter as and when the case is disposed by
the Hon'ble High Court or in case of any change
of circumstance?
2. Whether the Hon'ble CESTAT, Chennai is
correct in passing an Order that is not in
consonance/conformity with the provisions of
Section 35C of the Central Excise Act, 1944?"
3. We have heard Mr.V.Sundareswaran, learned Senior Standing
Counsel for the appellant and Mr.P.R.Renganath, learned counsel appearing
for the respondent.
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CMA.No.1131 of 2018
4. The respondent-assessee has filed a writ of declaration to
declare the provisions of Section 65(105)(zzze) and Section 67(3) of the
Finance Act, 1994 as ultra vires Article 14, 19(1)(g) and 265 of the
Constitution of India. The respondent-assessee has also filed a writ of
prohibition to prohibit the Commissioner of Service Tax, Chennai from
taking action pursuant to the Show Cause Notice No.212/07 dated
22.10.2007. The writ petitions were heard by the learned Single Bench and
by order dated 09.03.2012, this Court directed that the personal hearing of
the respondent-assessee scheduled to be held on 09.03.2012, shall not go on
until further orders. When this matter was brought to the notice of the
Tribunal, the Tribunal has disposed of the appeal by the impugned order
with liberty to the parties to file an application to reopen the matter.
5. In our considered view, the correct approach would be to keep
the appeal pending before the Tribunal, because the interim order is only to
the effect that the personal hearing should not go on.
6. We are informed by the learned Senior Standing Counsel for the
appellant that since a writ of declaration has been filed by the appellant, the
https://www.mhc.tn.gov.in/judis/
CMA.No.1131 of 2018
matter has to be heard by a Division Bench and the writ petitions are also
pending.
7. We are of the considered view that the appeal may be kept
pending before the Tribunal and should not be disposed of till the writ
petitions are disposed of in one way or another or if any interim orders are
passed in the writ petitions.
8. With the above reasons, the appeal is allowed and the impugned
order is set aside and the substantial question of law (i) is answered in
favour of the Department and the appeal is restored to the file of the
Tribunal awaiting the orders passed in the writ petitions, either interim or
final orders. Consequently, the substantial question of law (ii) is left open.
No costs.
(T.S.S.,J.) (R.N.M.,J.)
04.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
https://www.mhc.tn.gov.in/judis/
CMA.No.1131 of 2018
To
1. Customs, Excise and Service
Tax Appellate Tribunal,
South Zonal Bench,
Chennai.
2. The Commissioner of GST & Central Excise,
Chennai South Commissionerate,
MHU Complex,
No.692, Anna Salai,
Nandanam, Chennai - 600 035.
https://www.mhc.tn.gov.in/judis/
CMA.No.1131 of 2018
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
C.M.A.No.1131 of 2018
04.02.2021
https://www.mhc.tn.gov.in/judis/
