TMI Blog2016 (11) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mr. Narendra Singhvi, Adv Mr. KK Anand Advocate For Appellant Mr. Govind Dixit, DR For Respondent Per Ms. Archana Wadhwa : As per facts on record the dispute in the present appeal relating to classification of the services provided by the appellant was referred to the Larger Bench in the case of Great Lakes Institute of Management Ltd Vs. CST, Chennai [2013 (32) STR 305 (Fri.-LB)] and as per the Final Order passed in the said decision of the Larger Bench the same were held in favour of the Revenue and the files were sent back to the regular Bench for disposal of the appeal. When the matter in the present case came up before the regular bench The Tribunal vide its Final Order No ST/A/53952/2015-CU[DB], dated 29.10.2015, by adopting the Larger Bench decision in the case of Great Lakes Institute of Management Ltd. (supra), rejected the appeal on merits. 2. Thereafter, the said order of the Tribunal was appealed against by the appellant before the Hon'ble Supreme Court, who vide their order dated 08 07 2016, granted leave to appeal in the matter. It is seen that the Hon'ble Supreme Court was also pleased to grant stay of recovery of penalty, subject to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified Ld. Departmental Representative submits that the fact of pendency of the appeal before the Hon'ble Supreme Court was not brought to the notice of the Bench by the Id advocate appearing for the applicant in support of the ROM, even though the same law firm appeared before the Hon'ble Supreme Court As such it stands contended that it was the duty of the Id. advocate to inform the Tribunal about the pendency of the appeal before the Hon'ble Supreme Court and as the Tribunal was kept in dark about this aspect by the Id. advocate as also by the Registry, the order dated 02 08 2016 stands obtained without full disclosure of facts and as such should be recalled He however, fairly admitted that the said fact was also not brought to the Bench either by the Departmental Representative or by the Chief Commissioner, who had admittedly received the same by that time. Revenue in their application have also submitted that two remedies under law before two different fora commonly known as forum shopping is a practice which stands disapproved by the Hon ble Supreme Court, and it is an abuse of the process of law. They relied upon Hon ble Supreme Court decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.07.2016 against the Final Order dated 29.05.2015, passed by the Tribunal. There is no provision like Section 35F of the Act requiring an appellant to deposit the amount confirmed against him, as a condition of hearing of his appeal. An appellant is not required to deposit the amount before his appeal is to be admitted before the Hon'ble Supreme Court and the grant of stay of recovery against penalty subject to deposit of interest and tax was an order by the Hon ble Supreme Court which was in favour of assessee. Such an order does not debar exercise of the jurisdiction by the Tribunal in respect of an application filed in terms of Section 35C(2) of the Act. In as much as the appeal was still pending before the Hon'ble Supreme Court and has not been disposed of, the Revenue's contention that the earlier order of the Tribunal stands merged with the Hon'ble Supreme Court order dated 08.07.2016 is not worthy of acceptance. Ld. advocate further contended that the allegation of forum shopping' made against the appellant is not sustainable in as much as filing of an appeal before the Hon'ble Supreme Court as well as filing of ROM application before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before us that in as much as the Id. advocate appearing in support of the ROM application belonging to the same law firm, caused appearance before the Hon ble Supreme Court on 29 05.2015, they were very well aware of the said order of the Hon'ble Supreme Court and should have brought the same to the notice of the Bench Any order obtained by fraud is a nullity. 9. Without commenting upon the correctness of the Order passed in ROM, we are of the view that the Id. advocate was under legal duty to bring to the notice of the Bench, at the time of disposal of ROM application, the above factual developments irrespective of the fact as to whether the Tribunal in that case would have decided or not decided the ROM application. Though we agree with the learned advocate that filing of an appeal before the Hon ble Supreme Court in terms of Section 35L of the Act and filing of a separate ROM application before the Tribunal under Section 35C(2) of the Act does not amount to forum shopping or amounts to merger , but the fact remains that there was non-disclosure of the proceedings pending before the Hon'ble Supreme Court, at the time of disposal of the ROM application It is well s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Hon ble Supreme Court to deposit tax amount along with interest was suppressed from the Court the same would constitute fraud and the order obtained by concealing the said fact cannot be allowed to be continued. 10. Intentionally or unintentionally the fact remains that the Bench was not appraised of the said order of the Hon'ble Supreme Court As we have already observed that nondisclosure of the relevant facts and obtaining of a favourable order by not bringing the relevant facts to the notice of the Bench abuses the due process of law and vitiates the very order so obtained. As such, we deem it fit to recall the order passed on ROM application as prayed for by Revenue and allow the Miscellaneous Application filed by them. 11. Before we part, we deal with technical objections raised by the Id advocate as regards filing of second application for rectification of mistake in the order passed on the ROM. We make it clear that Revenue is not finding any mistake in the order dated 02.08.2016 passed by the Tribunal on the applicant's ROM application in as much as it is not their contention that the order is wrong. As such, their Misc. Application cannot be said to ..... 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