2014 (9) TMI 486 - HC - Service Tax

Waiver of pre-deposit - Held that - The appeal filed by the petitioner is now pending before the first respondent (CESTAT). It is for the first respondent to take up the appeal on merits. In case, the first respondent is of the view that pre-deposit cannot be waived, necessarily, the petitioner has to deposit the pre-deposit amount. When the appeal is pending before the first respondent, it is not open to the petitioner to challenge the very same order before this Court. - petition dismissed.

Summary

Issues:
1. Challenge to order determining service tax and penalty under Section 78 of the Finance Act, 1994.
2. Dismissal of appeal on the ground of limitation.
3. Application for waiver of pre-deposit pending.
4. Recovery of service tax by the fourth respondent leading to the writ petition.
5. Challenge to the original order confirmed by the appellate authority.
6. Jurisdiction of the first respondent to take up the appeal on merits.
7. Prohibition on challenging the order before multiple forums simultaneously.
8. Dismissal of the writ petition.

Analysis:

1. The petitioner challenged the order passed by the Assistant Commissioner of Central Excise, Cuddalore, which determined the service tax payable along with a penalty under Section 78 of the Finance Act, 1994. The challenge was unsuccessful before the second respondent, who dismissed the appeal citing limitation. The appeal is now pending before the first respondent, who is yet to decide on the matter. The petitioner also filed an application for waiver of pre-deposit, which is currently pending consideration.

2. The primary reason for the writ petition seems to be the action taken by the fourth respondent to recover the service tax, as confirmed by the appellate authority. This action prompted the petitioner to challenge the original order through the writ petition.

3. The High Court emphasized that when an appeal is pending before the first respondent, the petitioner cannot simultaneously challenge the same order before the Court or initiate parallel proceedings in different forums. The Court noted that if the first respondent decides that the pre-deposit cannot be waived, the petitioner must comply with the requirement. Therefore, the Court found no merit in the petitioner's contention to challenge the order before the Court.

4. Ultimately, the High Court dismissed the writ petition, stating that the petitioner cannot challenge the order before multiple forums simultaneously. The Court did not award any costs, and the connected miscellaneous petition was closed as a consequence of the dismissal of the writ petition.