Page 129 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] GLOBAL COAL & MINING PVT. LTD. v. COMMISSIONER OF SERVICE TAX, DELHI 87
from 1 June, 2007. The Department admits that with effect from 1 June, 2007, the
activity carried out by the appellant is covered under the category of service in
relation to mining. This activity could not, therefore, have been categorized un-
der BAS prior to 1 June, 2007.
22. Thus, the demand of Service Tax in the impugned order under BAS
from 16 June, 2005 to 30 May, 2007 is not justified.
23. What is, however, disturbing is the manner in which the three bind-
ing decisions of the Tribunal, on which reliance was placed by the appellant,
were not followed by the Principal Commissioner. After noticing the decision of
the Tribunal in Aryan Energy and the fact that the position of law was reiterated
by the Tribunal in Spectrum Coal and Aryan Coal, the Principal Commissioner ig-
nored the binding decisions for the reason that the Department had filed an ap-
peal against the decision of the Tribunal in Aryan Coal before the Delhi High
Court and though the appeal filed by the Department was dismissed by the Del-
hi High Court on 25 February, 2014, but the Civil Appeal filed by the Department
was dismissed by the Supreme Court on 13 May, 2015 on the ground of delay
leaving open the question of law. The Principal Commissioner observed that the
“one line” order of the Supreme Court “is a non-speaking one which can only be
termed as a decision and not a judgment” and that “the judgment of the Tribunal is not
final and also not approved by the Supreme Court because it is specifically stated by the
Court that the question of law is kept open”.
24. The Principal Commissioner further observed :
“I reach at the conclusion that the ratio of the case i.e. Aryan Coal Beneficiations
Pvt. Ltd. v. CST, New Delhi - 2013 (29) S.T.R. 74 (Tri. - Del.) cited by the par-
ty, in which earlier two cases were also followed need not to be taken up for
any discussion in the instant case as it becomes irrelevant since the judgment of
Tribunal is in jeopardy and the question of law is still open.”
25. The Supreme Court had dismissed the Civil Appeal filed by the
Department to assail the decision of the Tribunal in Aryan Coal. It was also ob-
served by the Supreme Court that the question of law was kept open. The deci-
sion of the Tribunal in Aryan Coal had not been set aside and, therefore, the Prin-
cipal Commissioner could not have ignored the binding decisions of the Tribunal
by observing that the order of Supreme Court was a non-speaking one line order
and that the question of law had been kept open by the Supreme Court.
26. When the Supreme Court observed that the question of law had
been kept open, it is obvious that the question of law would be considered by the
Supreme Court in future. This certainly did not give liberty to the adjudicating
officer to determine afresh the legal issue. Dismissal of a Civil Appeal by the Su-
preme Court would result in the merger of the order of the Tribunal in the order
of the Supreme Court and it is for this reason that the Supreme Court specifically
observed that the question of law was kept open. The Principal Commissioner
should have realized that there were at least three binding decisions of the Tri-
bunal on the point and, therefore, had no option but to decide the matter in the
light of the law laid down in these three decisions. The Principal Commissioner,
however, not only exceeded his jurisdiction in taking a view contrary to the three
binding decisions of the Tribunal but even went to the extent of making observa-
tions on the order passed by the Supreme Court in the appeal that had been filed
by the Department as he observed that the order of the Supreme Court is a ‘one
line’ ‘non-speaking’ order. Judicial discipline and propriety demands that the Ad-

GST LAW TIMES  7th May 2020  129