- (1.) HEARD learned counsel for the parries. The petitioner's contention is that petitioner was served with a notice to pay the service tax for the services rendered by the petitioner which, according to the petitioner, were not covered under the provisions of the service tax so as to entail any liability of the service tax. The petitioner submitted reply to the show cause notice before the concerned authorities, which rejected the petitioner's contention, However, the Appellate authority held that the said service is not the service covered for creating a liability of service tax under the provisions of the Act. The Revenue after obtaining the permission of the COD preferred appeal before the Appellate authority, which is pending before the Tribunal. For subsequent year, the petitioner was again served with the notice to show cause why the service tax may not be levied against the services rendered by the petitioner. In this proceeding, the Assessing Officer itself held that the petitioners work comes under the purview of service tax and, therefore, it is liable to pay service tax. The petitioner thereafter applied before the COD for obtaining the permission to prefer further appeal, which was rejected in the year 2008. Subsequent thereto, the petitioner submitted a review application before the COD and sought permission for preferring appeal in view of the judgment of the Hon'ble Supreme Court rendered in the case of Electronics Corporation of India Ltd. Vrs. Union of India and Ors. reported in : (2011) 3 S.C.C. 404, wherein the Hon'ble Supreme Court found that on the same set of facts, some times clearance is given, obviously for filing the appeal, and in same set of facts some times COD refused the permission to prefer appeal. After taking into account the direction issued by the Supreme Court, in consequence of which the COD was established, the Supreme Court observed that the mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. After further consideration, the Hon'ble Supreme Court ordered for recalling the order passed in ONGC -II, ONGC -III and ONGC -IV cases dated 11th October, 1991, 7th January, 1994 and 20th July, 2007 respectively.
(2.) ACCORDING to the learned counsel for the petitioner, in nutshell one appeal preferred by the Revenue is pending before the Tribunal, challenging the order passed in favour of the petitioner, wherein the appellate authority held that petitioner is not liable to pay the service tax. For the same contract, for subsequent year the revenue authority held that petitioner is liable to pay service tax and when the petitioner preferred to challenge the said order before the Tribunal the petitioner's sought permission of the COD to prefer appeal which was rejected, ignoring the fact that there is already one order in favour of the petitioner which is a Government of India Undertaking and doing the work of another Undertaking of Government of India. In that situation, the petitioner is fully justified in filing the review application before the COD and sought permission of the COD for preferring Appeal and during pendency of the review application, the appeal of the petitioner has been dismissed.
(3.) THE matter requires consideration but since the matter is of Revenue, we need to hear the matter expeditiously. Learned counsel for the Revenue sought time to file counter affidavit.;