2009 (6) TMI 70 - AT - Service Tax

Appellant's Adjournment Request Denied; Stay Application Rejected on Procedural Grounds

The Tribunal dismissed the appellant's request for adjournment due to misunderstanding of hearing dates and Tribunal procedures. The stay application was ... Adjournment and fixation of hearing dates by the Tribunal - obligation of parties to appear on fixed dates through authorised representatives - grant of interim stay of tax demand - prima facie case for grant of stay - appealability and maintainability of orders passed under the exercise of power under a non appealable provisionAdjournment and fixation of hearing dates by the Tribunal - obligation of parties to appear on fixed dates through authorised representatives - Whether the matter should be adjourned and the hearing date refixed at the request of the appellant's representative - HELD THAT: - The Tribunal observed that hearing dates are fixed by its own decision and not at the unilateral convenience of parties or their representatives. Where an adjournment has already been granted in the presence of a representative and a specific date fixed, the party must make arrangements to appear in person or through its representative on that date. The representative's characterisation of hearing dates as 'appointments' and repeated requests to defer beyond a fixed date did not furnish sufficient grounds for further adjournment. Accordingly, the grievance in the representative's letters that a new date should be fixed beyond the Tribunal's selected date was held to be without substance. [Paras 1, 2, 3, 4]Request for further adjournment and refixation of the hearing date was refused.Grant of interim stay of tax demand - prima facie case for grant of stay - Whether an interim stay of the impugned order should be granted - HELD THAT: - On consideration of the records and submissions, the Tribunal found that the activities carried on by the appellant comprised the essential functions normally performed by Clearing and Forwarding Agents. In view of those findings, the Tribunal concluded that there was no prima facie case made out in favour of granting stay of the impugned order. The absence of a prima facie case was determinative of the application for interim relief. [Paras 5, 7]Application for interim stay was dismissed for want of a prima facie case.Appealability and maintainability of orders passed under the exercise of power under a non appealable provision - Whether the appeal against the impugned order is maintainable before the Appellate Tribunal - HELD THAT: - The Tribunal noted that the impugned order was passed in exercise of power under the specified provision of the Finance Act read with the Central Excise Act and observed that the scheme of the law (as encapsulated in the relevant provisions) does not refer to such orders as being appealable to the Appellate Tribunal. Bearing that statutory framework in mind, the Tribunal held that the maintainability of the appeal was in doubt, which weighed against grant of interim relief. [Paras 6]Maintainability of the appeal was held to be doubtful.Final Conclusion: The Tribunal refused further adjournment, held there was no prima facie case for grant of interim stay and dismissed the stay application, and observed that the maintainability of the appeal itself was in doubt. Issues:1. Adjournment request for hearing dates.2. Misunderstanding regarding Tribunal proceedings.3. Stay application and its prima facie case.4. Maintainability of appeal under Section 86.Analysis:1. The appellant's representative requested adjournment for hearing dates citing unavailability due to health reasons. The Tribunal noted the representative's confusion, treating hearing dates as 'appointments' and addressing letters to the Assistant Registrar. The Tribunal refrained from advising on procedural matters but emphasized that hearing dates are set by the Tribunal's decision, not at parties' will.2. The Tribunal highlighted the representative's misconception about the nature of Tribunal proceedings, clarifying that hearings are not akin to meetings with clients. The Tribunal urged the Chartered Accountant to familiarize himself with the Tribunal's functioning procedures before corresponding further.3. Regarding the stay application, the Tribunal reviewed the activities of the appellant, resembling those of Clearing and Forwarding Agents. Finding no prima facie case for granting a stay on the impugned order, the Tribunal dismissed the application. Additionally, the Tribunal raised doubts on the appeal's maintainability under Section 86, as orders under Section 83 of the Finance Act may not be appealable to the Appellate Tribunal.4. Considering the legal provisions under Section 86, which do not specify orders under Section 83 of the Finance Act as appealable to the Appellate Tribunal, the Tribunal questioned the appeal's maintainability. Ultimately, as no case was established, the Tribunal dismissed the application for stay based on the lack of substance in the representative's grievance and the absence of a prima facie case for granting a stay on the impugned order.