The Commissioner of Central Tax Vs M/S Genting Lanco (India) Pvt. Ltd.

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone the delay of 107 days in representation of the CEA.

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Counsel for the Appellant:

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1.Y N VIVEKANANDA

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Counsel for the Respondent:

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1.B.ABHAY SIDDHANTH MOOTHA

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RRR,J & TCDS,J C.E.A.No.46 of 2019

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The Court made the following Judgment:

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(per Hon’ble Sri Justice R. Raghunandan Rao)

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The respondent, which was registered, under the Finance Act, 1994, was engaged in supplying service of operation and management of a Thermal Power Plant. The amounts received by the respondent, in regard to such services, for the period, 10.09.2004 to 28.02.2005, was sought to be taxed. The respondent resisted the said proceeding, on the ground that, the services offered by the respondent are not exigible to service tax at all. However, the Assessing Authority, by an Order, dated 30.01.2009, rejected the said contention of the respondent and brought the turnover of the petitioner to tax. Aggrieved by this Order of the Assessing Authority, the respondent moved an Appeal before the Commissioner (Appeals). The said Commissioner (Appeals), Guntur, by way of an Order-in-Appeal bearing No.28/2009 (G) ST, dated 14.12.2009, set aside the demand and allowed the Appeal, on merits as well as on grounds of limitation.

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Aggrieved by this Order-in-Appeal, the Commissioner of Central Tax, Guntur, approached the Tribunal, by way of an Appeal.

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The Commissioner of Central Tax, Guntur, passed orders of assessment, levying service tax on the turnovers of the respondent.

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The details of the period and the orders passed by the Commissioner, Central Tax are given below:

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Period	Details of Commissioner’s OIO
16-06-2005 to 30-09-2007	10/2008-ST dt.17-12-2008
01-10-2007 to 30-09-2008	18/2009-ST dt.16-07-2009
01-10-2008 to 31-03-2011	74/2012-ST dt.29-08-2012
01-04-2011 to 31-03-2012	114/2012-ST dt.31-12-2012
Apr, 2012 to Mar, 2013	GUN-EXCUS-000-COM-060 dt.09-09-2014
Apr, 2013 to Mar, 2014	GUN-EXCUS-000-COM-019-15-16 dt.24-03-2016

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Aggrieved by these orders, the respondent approached the Tribunal by way of separate Appeals. The details of the Appeals before the Tribunal are as follows:

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Appeal No.	Appellant	Respondent	Order-in-Appeal No.
ST/143/2009			OIO: 10/2008-ST, dt.17.12.2008
ST/817/2009			OIO: 18/2009-ST (Commr.), dt.16/17.07.2009
ST/3224/2012	Genting Lanco (India) Pvt.Ltd.	CCT, Guntur-GST	OIO: 74/2012-ST, dt.29.08.2012
ST/25749/2013			OIO: 114/2012-ST, dt.31.12.2012
ST/23688/2014			OIO: GUN-EXCUS-000-COM- O60, dt.09.09.2014

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ST/30407/2016			OIO: GUN-EXCUS-000-COM- 019-15-16, dt.24.03.2016
ST/487/2010	CCT, Guntur GST	Genting Lanco (India) Pvt.Ltd.	OIA: 28/2009, dt.19.12.2009

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The Tribunal by way of a common order, dated 10.09.2018, allowed the Appeals filed by the respondent and rejected the Appeals filed by the Revenue.

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The Commissioner of Central Tax, Guntur, had thereupon, filed the present Appeal against the said common order, dated 10.09.2018.

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Heard Sri Y. N. Vivekananda, the learned Standing Counsel appearing for the appellant and Sri B. Abhay Siddhanth Mootha, the learned counsel appearing for the respondent.

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The learned counsel appearing for the respondent, has raised two preliminary issues, regarding the maintainability of this Appeal. Firstly, a single Appeal has been filed, against the orders passed in seven (07) Appeals, by the Tribunal and the same is not permissible as separate Appeals, would have to be filed against each of the Appeals, disposed of, by the Tribunal. Secondly, none of these Appeals crossed the monetary limit, prescribed by Circular bearing No.CBIC-160390/20/2024-JC-CBEC, dated 06.08.2024, issued in August – 2024.

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Sri Y. N. Vivekananda, the learned Standing Counsel appearing for the appellant, would contend that, a single Appeal is maintainable in as much as the order, against which the Appeal has been filed is a common order. The learned Standing Counsel would also contend that, though the value of each of the Appeals, before the Tribunal was below the monetary limits, set out under the Circulars, the same would not be applicable as the aggregate of the value is far higher than the monetary limit.

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In response to this contention, the learned counsel appearing for the respondent, would contend that, the aggregate of the values of each of the cases, cannot be taken as the bundle marked against which the monetary limit is to be tested. The learned counsel would also contend that, the value of each proceedings should be taken separately, for the purposes of determining whether the monetary limit prescribed, under the circular, has been exceeded or not.

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The Circular itself states that, any Appeal filed, by the Department, before the High Court, would have to be withdrawn, unless the monetary limit of that Appeal crosses Rs.2,00,00,000/-. In the present case, if each of the cases, before the Tribunal is taken into account, the monetary limit fixed under the Circular would not be exceeded and the Appeal would have to be dismissed, on that ground.

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The question of how monetary limits are to be determined, has been explained in Instruction F. No.390/Misc/163/2010-JC, dated 26.12.2014. Instruction No.4 reads as follows:

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“4. The Instructions mentioned above used the word “case”. However, the same was not defined. The term “case” needs to be interpreted in the context of National Litigation Policy which aims at reduction of litigation. In respect of a composite order which disposes of more than one appeal/SCN and the Department contemplates filing of appeal, every appeal would be a “case” and should be subjected to the threshold limit prescribed. To illustrate, if the Tribunal passes one composite order disposing of more than one appeal filed before it, and if the Department being aggrieved is required to file more than one appeal against the said Tribunal order, then each appeal shall be subject to the monetary limit prescribed.”

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The said instruction makes it amply clear that, the value of each of the cases, would have to be taken up separately, and these values cannot be aggregated only, on the ground that, a common order had been passed.

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In that view of the matter, this Appeal would have to be dismissed.

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Apart from the above, another reason for dismissing the Appeal is the fact that, a Single Appeal has been filed against the common order, disposing of seven (07) cases before the Tribunal. It is settled law that, a separate Appeal would have to be filed, in each cases, even if two or more cases have been disposed of, by way of a common order. As separate Appeals have not been filed and one (01) Appeal has been filed, the same would not be maintainable.

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