TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 928
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.... Appeal No. 87095 of 2022 and the Appeal challenges CESTAT's Final Order No. 85072 of 2025 dated 24 January 2025, which disposes of the Respondent's Service Tax Appeal No. 87095 of 2022. 3. At the outset, Mr Rafique Dada, learned Senior Advocate for the Respondent objected to the maintainability of the Appeal and the Petition, by pointing out that under Section 35-G of the Central Excise Act, 1944, under which the Appeal was purported to be instituted, an Appeal shall lie to the High Court from the CESTAT Orders, not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or the value of goods for the purposes of assessment. He pointed out that in this case, the issue of rate and valuation was squarely involved, and this was even acknowledged in the Appeal memo. He submitted that apart from the acknowledgement, from the CESTAT's Order, it is apparent that the CESTAT has addressed the issue of rate and valuation, and the Appeal memo contains grounds contesting rate and valuation. Accordingly, Mr Dada submitted that the Appeal would not be maintainable before this Court and the Petitioner/Appellant may have to....
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....Tax Appeal No. 87095 of 2023, was a separate order made in the purported exercise of Rule 41 of the 1982 Rules. He submitted that the application under Rule 41, virtually seeking modification of the CESTAT's original order dated 24 January 2025 was not at all maintainable, and consequently the impugned order dated 06 May 2025 made by the CESTAT is wholly without jurisdiction. He submitted that this order overlooks the provisions of the Proviso to section 142 (6) (a) of the CGST Act 2017, which, in terms prohibits refund of any amount of CENVAT credit in cash where the balance of the said amount as on the appointed date has been carried forward under the CGST Act 2017. 8. Mr Anil Singh pointed out that the appointed date for the CGST Act was 01 July 2017. By this date, admittedly, the Respondent had carried forward the amount of CENVAT credit under the CGST Act 2017. He submitted that the subsequent reversal after almost 7 years, i.e. on 17 July 2024, was of no avail, and such a reversal was only an attempt to overcome the Proviso to Section 142 (6) (a) of the CGST Act. However, the Proviso is clear that on the appointed date, the CENVAT credit had already been carried forward, the....
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....we note that the CESTAT made the same in the purported exercise of powers under Rule 41 of the 1982 Rules. Rule 41 enables the CESTAT to make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent the abuse of its process or to secure the ends of justice. In effect, the order dated 06 May 2025 could be said to either supplement, interpret or aid in the implementation of CESTAT's final order dated 24 January 2025. The decisions relied upon by Mr Dada suggest that even such an order would be appealable under Section 35-L before the Hon'ble Supreme Court and not before this Court under Section 35-G of the Central Excise Act, 1944. This is more so because of the use of the phrase "among other things" in Sections 35-G and 35-L of the Central Excise Act, 1944. 15. Even if we were to hold that Mr Dada's objection cannot relate to the issue of "maintainability" because the jurisdiction of this Court under Article 226 is relatively broad, still, there is the issue of "entertainability". The jurisdiction under Article 226 of the Constitution is both plenary and discretionary. The question is whether we should exercise o....
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....bmitted that if this amount is now paid to the Respondent, a virtually irreversible situation would arise, since it is the Respondent's case that their factories have closed and they are no longer in active business. Mr Singh submitted that though this position about closure of factories etc. is being disputed by the Petitioner/Appellant, still, considering the quantum of the amount, it would be extremely difficult for the Petitioner/Appellant to recover such an amount from the Respondent. 20. Mr. Dada, on instructions, vehemently opposed the grant of any stay. He submitted that a CESTAT's order was in the nature of a money decree and therefore, the same should not be stayed. He submitted that there was nothing wrong with the CESTAT's two orders and therefore, this Court may not grant any protection or stay to the Petitioner/Appellant. He submitted that the Respondent was deprived of this amount for a substantial period, and if the Petitioner's appeal were allowed, restitution was always possible. 21. Upon due consideration of the rival contentions, we think that the interest of the Appellant/Petitioner-Revenue must be protected for some reasonable period. The scope of the provis....