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March 13, 2023

The tribunal cannot neglect to make a decision on the merits of the case until the ongoing case has been resolved

The tribunal cannot neglect to make a decision on the merits of the case until the ongoing case has been resolved

Fact and issue of the case

Rule returnable forthwith. Learned Central Government Standing Counsel Mr. Nikunt K. Raval waives service of notice of rule for and on behalf of respondents.

With consent of learned advocates appearing for the respective parties, this matter is taken up for final hearing in view of the several orders passed by this Court deciding similar issue involved in the present present petition.

By way of present petition under Articles 14, 19(1)(g), 265 and 300(A) of the Constitution of India, petitioners have prayed for

following reliefs:

“(A) That Your Lordships may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, direction or order, quashing and setting aside Order No.A/11891-11892/2021 dated 24.5.2021 (Annexure- “M” hereto) made by the Appellate Tribunal, Ahmedabad, with all consequential reliefs and benefits:

(B) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, order or direction, fully and permanently prohibiting the Respondents herein from taking any action against the Petitioner Company pursuant to order No.A/11891-11892/2021 dated 24.5.2021 (Annexure- “M” hereto) thereby ordering conclusion of the case made out by the Revenue against the Petitioner Company;

(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay operation, implementation and execution of Order No.A/ 11891-11892/2021 dated 24.5.2021 (Annexure- “M” hereto) passed by the Appellate Tribunal, Ahmedabad on terms and conditions that may be deemed fit by this Hon’ble Court;

(D) An ex-parte ad-interim relief in terms of para 23 (C) above may kindly be granted.

(E) xxx”

In response to the notice issued by this Court vide order dated 30.09.2021, respondents have appeared through their learned counsel and affidavit-in-reply has been filed.

It is the grievance of the petitioners that the Tribunal instead of deciding the matter has remanded it to the Assessing Officer in view of the fact that the matter being a case of M/s. PCM Cement Concrete Private Limited vs. Commissioner of Central Excise Customs and Service Tax (Civil Appeal Nos.005702-005703/2018) is pending before the Hon’ble Supreme Court.

Observation of the court

We have heard learned advocates appearing for the respective It is true that Civil Appeal Nos.005702-005703/2018 is pending before the Hon’ble Apex Court. We notice that entire basis of remand ordered by the Appellate Tribunal in the present case is on the ground of pending aforesaid Civil Appeal. Secondly, the Tribunal has noted that to adjudicate the issue involved the matter needs to be reconsidered taking into account not only position of income tax but also on basis of terms and conditions of the employment of Directors. The aforesaid aspect as submitted by Mr. Paresh Dave, learned advocate for petitioner is settled by various decisions holding that Directors of a company were employees, and remuneration paid to Directors was not chargeable to service tax. In such circumstances, we find that approach of Tribunal for remand was not proper.

In view of the above facts, we are of the opinion that petition requires consideration. Present petition stands disposed of with following direction:

“In the instant case also, we notice that the approach of the Tribunal is to abdicate its duty of deciding the matter on the merits or to retain the matter till the outcome of the pending matter before the Apex Court. This approach of Tribunal is not proper. We deem it appropriate to direct the Tribunal to decide the matter on merits. We further reserve liberty to the parties to raise all contentions as raised by both the sides before this Court. Let the same be decided without further loss of time.”

With the above observation and direction, present petition stands disposed of, Rule is made absolute to the aforesaid extent.

It is hereby made clear that this Court has not examined the merits of the case.


In the result, appeal of the assessee is allowed and ruled in favour of the assessee

Read the full order from here


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