Madras High Court
The Commissioner Of Service Tax vs M/S.C-Dot Alcatel Lucent ... on 24 February, 2021
CMA.Nos.2333 & 2334
of 2015
In the High Court of Judicature at Madras
Dated : 24.2.2021
Coram :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
Civil Miscellaneous Appeal Nos.2333 & 2334 of 2015
The Commissioner of Service Tax,
Chennai-III, Chennai-40 ...Appellant
Vs
1.M/s.C-Dot Alcatel Lucent Research
Centre (P) Ltd., Chennai-41.
2.The Customs, Excise and Service
Tax Appellate Tribunal, South
Zonal Bench, Chennai-6. ...Respondents
APPEALS under Section 35G(2) of the Central Excise Act, 1944
against final order Nos.40184 and 40185/2015 dated 04.3.2015
passed by the second respondent.
For Appellant : Mrs.R.Hemalatha, SSC
For Respondent-1 : No appearance
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CMA.Nos.2333 & 2334
of 2015
COMMON JUDGMENT
(Judgment was delivered by T.S.SIVAGNANAM,J)
We have elaborately heard Mrs.R.Hemalatha, learned Senior
Standing Counsel appearing for the appellant. Though notice was
served on the first respondent, the same returned with the postal
endorsement 'left' as early as 08.6.2019. Further, we note that the
first respondent did not even intimate the Revenue about the change
of office. Hence, we are inclined to take up the appeals and proceed
with the matters.
2. These appeals, filed by the Revenue under Section 35G(2) of
the Central Excise Act, 1944, are directed against the common order
dated 04.3.2015 made in final order Nos.40184 and 40185/ 2015 on
the file of the Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai-6 (for short, the Tribunal).
3. The appeals were admitted on 05.11.2015 on the following
substantial questions of law :
“1. Whether the decision of the CESTAT
in allowing refund of CENVAT credit without
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CMA.Nos.2333 & 2334
of 2015
registration of service provider respondent is
correct in law? And
2. Whether the CESTAT was correct in
not considering the safeguards, conditions and
limitations contained in the Appendix to
Notification No.05/2006-CE(N.T.) dated
14.3.2006?”
4. The common order passed by the Tribunal dated 04.3.2015,
which is impugned in these appeals reads thus :
“In these two cases, Revenue's plea is
that when the respondent was not registered,
it has no right to get refund of tax paid. Law is
well settled that State shall not be enriched at
the cost of its citizen as has been held in the
case of Salonah Tea Company Ltd. Etc. Vs.
Superintendent of Taxes, Nowgong & Ors.
Etc., reported in 1988 (33) ELT 249 (SC).
Learned Commissioner (Appeals) is therefore
correct to order the refund to the assessee.
Accordingly, both the Revenue's appeals are
dismissed and stay applications disposed.”
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CMA.Nos.2333 & 2334
of 2015
5. On a reading of the above extracted order, we find that the
Tribunal stated the legal position that the State should not be enriched
at the costs of its citizen. There can be no quarrel over the said
proposition. However, the Tribunal failed to consider as to whether the
Commissioner (Appeals) was justified in passing the common order
dated 18.12.2013 allowing the appeals filed by the first respondent –
assessee. Several grounds have been raised by the Revenue before
the Tribunal, which could be seen from the grounds of appeal annexed
in the typed set of papers.
6. The Tribunal was required to examine the correctness of the
common order passed by the Commissioner (Appeals) with reference
to the grounds raised by the Revenue before it. We find that the
common impugned order is without any discussion on any of the
grounds raised by the Revenue. Hence, we are inclined to interfere
with the common impugned order and remand the matters to the
Tribunal for a fresh consideration.
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CMA.Nos.2333 & 2334
of 2015
7. For the above reasons, the above civil miscellaneous appeals
are allowed and the common impugned order passed by the Tribunal is
set aside. The matters are remanded to the Tribunal for a fresh
consideration in accordance with law after issuing notice to the first
respondent – assessee. It is needless to state that the Tribunal should
deal with all the grounds, which have been canvassed by the Revenue
before it. Consequently, the substantial questions of law framed are
left open.
24.2.2021
To
The Customs, Excise and Service Tax Appellate Tribunal, South
Zonal Bench, Chennai
RS
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2333 & 2334
of 2015
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
RS
CMA.Nos.2333 & 2334
of 2015
24.2.2021
https://www.mhc.tn.gov.in/judis/
