2013 (11) TMI 1310 - HC - Service Tax

Outstanding duty demand - Imposition of equal penalty - Held that - Duty under protest ordered to be made without prejudice to the right and contentions of the assessee - Conditional adinterim stay granted on penalty - Partial stay granted.

Summary

Issues:
Challenge to order in original; Maintainability of Writ Petition under Article 226; Imposition of penalty; Stay against execution of penalty.

Analysis:
1. Challenge to order in original: The petitioner contested an order imposing Service Tax and CENVAT credit, arguing that the adjudicating authority erred in levying a substantial amount of Service Tax. The petitioner claimed to have paid the Service Tax as advised by their consultant upon being informed of the tax liability.

2. Maintainability of Writ Petition under Article 226: The petitioner sought relief through a Writ Petition under Article 226 of the Constitution after their appeal was rejected due to being beyond the limitation period. The petitioner argued that challenging the order in original was within the purview of the court, even though an appeal would have provided a broader remedy.

3. Imposition of penalty: The petitioner agreed to pay the outstanding Service Tax amount under protest, while contesting the penalty imposed. The respondent supported the original order and argued against the maintainability of the Writ Petition.

4. Stay against execution of penalty: The court granted an adinterim stay against the execution of the penalty imposed, subject to the petitioner paying the entire Service Tax amount with interest within a specified timeframe. Additionally, the petitioner was required to pay a portion of the penalty amount within a set period to secure the stay.

In conclusion, the High Court of Bombay considered the arguments presented by both parties regarding the order in original, the maintainability of the Writ Petition, the imposition of penalty, and the stay against penalty execution. The court provided specific directions for the petitioner to comply with certain payment conditions to secure the stay on the penalty execution.