Commissioner Of Service Tax, Chennai vs M/S. Dell International Services India ...

ST/Misc./40268 & 40269/2015 and ST/S/40124 & 40125/2014 and ST/40068 & 40069/2014

(Arising out of Order-in-Appeal Nos.219 to 229/2013 (M-ST) dated 13.9.2013 passed by the Commissioner of Central Excise (Appeals), Chennai)

Commissioner of Service Tax, Chennai Appellant

Vs.

M/s. Dell International Services India Pvt. Ltd. Respondent

Appearance

Shri R. Subramaniyam, AC (AR), for the Appellant Shri S. Viswanathan, Advocate for the Respondent

CORAM

Honble Shri D.N. Panda, Judicial Member

Date of Hearing / Decision: 17.06.2015

Final Order No. 40644-40645 / 2015

Both the miscellaneous applications are for change of name which is supported by the order of the company court as well as Fresh Certificate of Incorporation issued by the Registrar of Companies. Learned AR objects to the application on the ground that the change of name was not sanctioned by the authority below.

2. There is no merit on the Revenues contention for which that is dismissed and both MAs are allowed for the change of name.

3. So far as the stay applications are concerned, there is no merit on the part of Revenue to move the same. Accordingly, those are dismissed.

4. Apparent reading of page numbers 29 to 34 of appeal record, it discloses that the Commissioner (Appeals) has only printed the headlines from ELT and passed the order without examining the evidence and material fact in respect of each claim of CENVAT credit. Law is codified in section 35A(4) of the Central Excise Act, 1944 which is applied to Finance Act, 1994 requiring the Commissioner (Appeals) to decide an appeal clearly stating the points for determination, the decision thereon and the reasons for the decision. That is not followed in the present case. Unless the material facts are tested by evidence and law, there shall not be any decision in the eyes of law. It shall be an empty formality. Therefore repeatedly, Honble Supreme Court has reminded the lower courts and quasi judicial authorities as to the manner how an order is to be written. In the case of Joint Commissioner of Income Tax, Surat Vs. Saheli Leasing & Industries Ltd.  2010 (253) ELT 705 (SC), Honble Supreme Court has laid down following guidelines for the courts below to pass orders. The same is reproduced as under:-

(a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order.

(b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion.

(c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader.

(d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative.

(e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author.

(f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society.

(g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society.

5. The Commissioner (Appeals) has to take up each and every item of claim of CENVAT credit and discussing the material facts in respect of the claim of the assessee, test the same on the touch stone of law. Applying the law to the tested fact shall pass appropriate order. Respondent shall get reasonable opportunity of hearing in the course of disposal of appeal. Upon testing the veracity of claim of CENVAT credit, the rebate claim made by the respondent shall deserve consideration.

6. In the result, both the appeals are remanded to learned Commissioner (Appeals).

(Dictated and pronounced in open court)

(D.N. Panda) Judicial Member

Rex

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