Tribunal appears to be proceeding in undue haste and uncalled hurry to pass orders - Even if a lengthy order is necessitated Tribunal must not fail to deliver it - Eventually justice is not only to be done, but must be seen to be done - matter remanded to CESTAT: HC
By TIOL News Service
MUMBAI, SEPT 01, 2014: CLOSE on the heels of the order reported by us on Friday - 2014-TIOL-1466-HC-MUM-CX, here is another order of the Bombay High Court, and, which, once again, gives the CESTAT dollops of advise.
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The appellant is before the High Court against the order of the CESTAT and submits that apart from being very brief, the Tribunal in one paragraph reasoning, namely, paragraph 8 of the impugned order, disposed of the Assessee's appeal by a perverse finding.
This is what paragraph 8 reads -
"8. We find that in the present case the payment regarding design service was made in 2008-09. The contention is that the service was performed prior to 01.06.2007 i.e. in the year 2004-2005. We find that there is no evidence as to why the payment was made in 2008-2009 in respect of the service received in 2004-2005. There is no evidence on record by way of agreement or copy of order placed or any other correspondence to prove that the service was performed prior to 01.06.2007. In these circumstances we find no infirmity in the impugned order, whereby the demand with interest and consequent penalty in respect of design service. We find no merit in the appeal filed by the assessee."
The appellant also submitted that the Tribunal has completely overlooked the documentary material on record and that it had failed to apply its mind and with regard to applicability of a taxing provision to the services rendered.
The Counsel for the Revenue submitted that the plea made by the appellant is an attempt to re-appreciate and reappraise the factual material and, therefore, since the Appeal does not raise any substantial question of law and it deserves to be dismissed.
After perusing the order passed by the Tribunal and the o-in-o as well as the annexures to the appeal paper book, the High Court observed -
++ We find that once the Adjudicating Authority while passing the order-in-original proceeds on the assumption that there is material on record with regard to rendering of services, but the controversy is whether the tax or taxable event occurred after the notification or rule being brought into force or not, then, the Tribunal was obliged in law to consider this aspect and in its entirety. It ought to have then commented upon the presumption or the basis on which the Adjudicating Authority proceeded. If the Adjudicating Authority proceeded on an erroneous basis and there was indeed no material which would support the legal argument of the Assessee, then, the Tribunal could have observed that the legal argument is not required to be answered in the absence of necessary factual basis. That we do not find to be the basis in the order of the Adjudicating Authority. In such circumstances the Tribunal was obliged not only to peruse the entire record and consider this issue, but render its findings after scrutiny thereof.
++ We do not see as to why the Tribunal also omits to make any reference to the contents of the communications and which emanate from the Assessee, but which are on the file of the Adjudicating Authority or at least the Superintendent of Service Tax.
++ If the services were received during the period 2004-2005 and the stand of the Assessee is that no service tax is liable to be paid on the said services and which have been availed of prior to the date of notification or rule coming into force, then, there was some material on record and in the form of at least Audit Report. These documents and in comparison to the contents of the Ledger Account, dates of bills/ invoices should have been considered and thereafter, a proper and complete finding should have been rendered by the Tribunal.
++ We find and repeatedly that the Tribunal in undue haste and uncalled hurry proceeds to pass the orders which have to be often set aside by this Court. This Court has repeatedly reminded the Tribunal that it is the last fact finding authority and which the Assessee and the Revenue approaches so as to have complete adjudication on facts and law. In these circumstances it was bounden duty of the Tribunal to have referred to the findings of the Adjudicating Authority and in their entirety. It may be that in all matters and in all cases the Tribunal is not required to pass a lengthy order. It is also equally true that on some occasions few words speak the entire truth. It could be that an efficient and experienced Judicial Officer does not require many words to say something which is very obvious and clear. However, that alone does not permit brushing aside the record. If after reference to the entire record the precise point for determination is framed and adjudicated or the ultimate decision and conclusion rests only on the same, then, one can understand a short order being passed. However, when various issues are raised and going to the root of the case, then, the Tribunal is required to apply its mind and to all facets of the matter. Even if a lengthy order is necessitated the Tribunal must not fail to deliver it. Eventually justice is not only to be done, but must be seen to be done.
++ A perusal of the same (para 8) would indicate that there is absolutely no reference made to the Audit Report, letters of the Assessee, Ledger Accounts and Bills. Rather they were on record is evident from paragraph 7 of the impugned order. There is, therefore, inconsistency and contradiction in the impugned order.
Noting that the High Court is left with no alternative but to quash and set aside the order of the Tribunal, the High Court did so.
The High Court thereafter directed the Tribunal to hear and dispose of afresh on merits the assessees appeal within a period of four months.
In passing: Also see Zenith Computers Ltd. - 2014-TIOL-623-HC-MUM-ST.
(See 2014-TIOL-1477-HC-MUM-ST)
