UNION OF INDIA vs. M/S MINWOOL FIBRES LTD.

|'[^tsf^!!^!^^ A IN THE HIGH COURT OF JUD E AT BILASPUR '^/%c <1^^€-tM^ C.E.A. N0. CCHHATTISGARH) |i, ^•6 ;T' OF 2006 APPELLANT //. <(%/ vi''y <-<^ >.<f INION OF INDIA THROUGH COMMISSIONER, GENTRAL EXCISE AND CUSTOMS CENTRAL EXCISE BHAWAN DHAMTARI ROAD, TIKARAPARA, RAIPUR (C.G.) 492-001 Versus ,' M/S MINWOOL FIBRES LTD, VILLAGE- REWAGAHAN, RAJNANDGAON (C.G.) ^' 1

il>, HIGH COURT OF CHHATTISGARH AT BILASPUR ^) D.B.: Hon'ble Mr. Justice Abhay Manohar Saure & Hon'ble Mr. Justice G. Minhaiuddin APPELLANT RESPONDENT TAX CASE No.29/2006 Union of India Versus M/s. Punjstar Insulation Fibres Co. Ib / TAX CASE No.32/2006 APPELLANT Union of India RESPONDENT Versus M/s. Minwool Fibres Ltd. TAX CASE No.33/2006 APPELLANT Unionoflndia sa i^i SINNI«N||»,'f RESPONDENT APPELLANT RESPONDENT Versus M/s. Rockwool Industries TAX CASE No.34/2006 Union of India Versus M/s. Kothari Chemicals APPELLANT RESPONDENT TAX CASE No.35/2006 Union of India Versus M/s. Lloyd Tar Products !Ki? [»

'«:• APPEALS UNDER SECTION 260A OF THE INCOME TAX ACT Auuearance: Ms. Smiti Sharma, Counsel for the appellants in all the appeals. None for the respondents, though served. ORALORDER (05.12.2012) The following order of the Court was passed by Abhay Manohar Sapre. J. Heard. (2) The decision rendered in Tax Case No.29/2006 shall govem disposal of all other connected appeal? being TAX C Nos.32/2006,33/2006, 34/2006 SE 35/2006, because,the impugned order challenged in all these appeals is comraon. (3) This is an appeal filed by the appellant -Union of India (Commissioner of Central Excise and Customs) under Sectir i 35-G of the Central Excise Act against the common Final Order No.l53-162/06-SM(BR) dated 18.01.2006 passed in Appeal Nos. ST/93/04-NB(S), ST/74/05NB(S) & ST/41 to 43/005-NB(S) by the Member (Judicial) of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. (4) By the impugned order, the learned Member of the Tribunal disraissed the appeal filed by the Commissioner of Central Excise and Customs and affirmed the order passed by the Commissioner (Appeals). (5) So the question that arises for consideration in this appeal is whether the Tribunal was justified in dismissing the appeal filed by the Commissioner of Central Excise and Customs?

(6) We consider it apposite to reproduce the entire order passed by the Tribunal for peinsal, because, it is a short one: AU these appeals are taken up together for the fact that the issue involved in these cases is the same. 2. The Department is in appeal in all these cases against the order of the Conunissioner (Appeals) wherein he has aUowed the appeals of fhe above inentioned respondents relying upon the Tribunal's decision in the» case of L.H. Sugar Factories Ltd, vs. CCE. Meemt-II, 2004 (165)-' ELT 161 (T). It is the contention of the DRs fhat the issue involved in these cases is settled by fhe decision of fhe Hon'ble Supreme Court in the case of M/s. Guiarat Ambuja, reported at 2005 (120) E^R 177 (SC). 3. The leamed advocates appearing on behalf of the respondents submit that the order of fhe Coimnissioner (Appeals), relying upon the Tribunal's decision in fhe case of L.H. Suear Factories Ltd. vs. CCE. Meemt-II, supra, was taken up by the Department to the Supreme Court and fhe Hon'ble Supreme Court ui its order as reported at 2005 (70) RLT 133 (SC), has dismissed the appeal filed by the Department. Hence fhis issue is covered by fhe decision of the Hon'ble Suprerae Court. 4. Considered the submission made by bofh sides, I find from the orders-in-appeal that fhe leamed Commissioner (Appeals) has come to the conclusion in all the appeals as follows :

^) (^, s "I have gone fhrough the grounds of appeal, subinissions at the tiine of hearing and all other evidence on record. I find that the raatter is no longer res integra. It is covered by the Tribunal decision in the case of L.H. Sugar Factories Pvt. Ltd., (supra). The Tribunal has elaborately dealt with the effect of introduction of Section 71A of the Finance Act, 2003 and also Section 73 ofthe Finance Act, 1944 as amended by the Finance Act, 2003 and held that the Uability to file retum is cast on the providers of such services only under SeSction 71A. The class of .- persons who corae under Section 71A is not brought under fhe net of Section 73. This being the position, a show cause notice issued to the Appellant invoking Section 73 is not maintauiable. Consequently, the appeal succeeds on merit and the irapugned order is set aside. I find fhat the Hon'ble Supreme Court in the case of CCE Meerut-II v. L.H. Sugar Factories Ltd., reported at 2005 (70) RLT 133 (SC), had observed as follows : 3. We entirely agree with the conclusion arrived at by the Tribunal. We find no inerit in these appeals and fhe same is accordingly dismissed. No order as to costs." 5. In view of fhe above fact that the Hon'ble Supreme Court has already upheld the order of the Tribunal in the case of CCE. Meerut-II v. L.H. Suear Factories Ltd., supra, I do not find any

5 ^ reason to interfere with fhe order ofthe Comniissioner (Appeals). AU ' the five appeals filed by the Departaient are disinissed. (7) Having heard the learned counsel for the appellant and on perusal of the record of the case including the impugned order quoted supra, we have formed an opinion rather we are compelled to forn'i an opinion to allow the appeal and while setting aside of the impugned order, remand fhe case to the Tribunal for deciding the appeals afresh. It is for this reason, we do not burden our order by narrating the entire facts in detail nor we consider it necessary to record any finding either way pn merits and allow the Tribunal to do so after the case is renianded while deciding the appeals afresh. (8) The need to remand the case to the Tribunal has occasioned due to the reason that the Tribunal did not even narrate the facts of the case as to what was the factual controversy which arise in this case and how it was dealt with first by the adjudicating authority, then, by the Commissioner (Appeals) and then by the Tribunal. In other words, we do not find mention of any facts in the impugned order. The impugned order in fact starts with the submission of the parties urged. (9) In order to appreciate the issues involved and the submissions urged by both the parties, the least that was expected was that at least bare facts of the case could have been stated in the impugned order. It is only then one could have appreciated the arguments urged in support of the respective contendons.

%. "^ (10) This Court as an Appellate Cdurt cannot countenance such approach if resorted to by the Tribunal. The Tribunal being the last Court of Appeal both on facts and in law, there lies some duty on it to mention the facts and then ssi law in detail in the impugned order. We are quite conscious of the fact that brevity is a virtue but not to the extent exhibited in the impugned order. It is not for this Court to find out the factual controversy and then mention it and then, apply the law laid down for decidinj whether the conclusion arrived at by the Tribunal while dismissing the appeal is proper or not. (11) It is a settled principle of law tlaat in order to examine as to whether the law down by the Supreme Court in a particular case is applicable to the facts of the case or not, what is flrst required to be seen is the facts of case in hand and then, the law has to be applied with a view to find out as to wh^ther the factual issues can be decided in favour of the assessee or in favour of the revenue. So lon; as therefore facts are not appreciated, mere quoting of the law would not suffice. (12) It is for this reason, we are constrained to allow this appeal and set-aside the impugned order passed by the Tribunal. The appeal is accordingly remanded to the Tribunal for its decision on merits. We request the Tribunal to set out the factual aspect of the controversy involyed in the case first in the judgment and then, examine keeping in view the law laid down in L.H. Suoar Fdctories Ltd. v. CCE. Meerut-JJ. 2004 1165) ELT 16J_{T) and M/s. Ouiarat Ambuia, 2005 (120) ECR 177 fSC) and any other case ^ holding the field on the issue raised as to whether the law laid down in these cases can be applied to the facts of this case or not and if so, how and if not, then

7 '^, why? While dealing this issue, the Tribunal will also keep in mind the amendments introduced by the Pariiament froni time to time in service tax and then, will see as to whether impugned notice issued under Section 73 was maintainable in the facts of this case or not. shyna ^ (13) Since no one appeared for the respondent-assessee despite service of notice on them and hence, the Tribunal shall issue fresh notice to the respondent -assessee for hearing of the appeal. (14) The appellant shall appear before the Tribunal on 15 of January 2013 and produce copy of this order before the Hon'ble Member of the Tribun^l to enable the Tribunal to proceed with the matter, as directed in this order. Sd/- Abhay Manohar Sapre Judge Sd/- G. Minhajuddin Judge