2015 (6) TMI 696 - HC - Service Tax

Recovery of service tax - Recovery before adjudication of upon the matter and fixed the quantum of service tax - Held that - It cannot be disputed that even before adjudication, the respondents could recover the amount. But on the assumed basis, the recovery which is being made that smacks with arbitrariness - Decision in the case of Technomaint Contractors Limited v. Union of India, reported in 2014 (4) TMI 882 - GUJARAT HIGH COURT followed - the petitioner is entitled for interim order - recovery proceedings stayed - Decided in favour of assessee.

Summary

Issues:
1. Demand of service tax without adjudication of actual amount.
2. Arbitrariness in recovery process.
3. Interpretation of Section 73C of the Finance Act, 1994.
4. Entitlement for interim order.

Analysis:

1. The petitioner raised a grievance regarding the demand of service tax by the respondents without adjudicating the actual amount to be paid. The respondents based their demand on the papers submitted by the petitioner. The court acknowledged that recovery could be made even before adjudication but emphasized that recovery on an assumed basis was arbitrary. Citing the case of Technomaint Contractors Limited v. Union of India, the court highlighted the impermissibility of recoveries without adjudication of disputed taxes. The court noted that Section 73C of the Finance Act, 1994 allows for provisional attachment of properties to protect revenue interests during proceedings under Section 73 or 73A, but such provision cannot be used for recovery before adjudication.

2. The court, in line with the precedent set by the Division Bench, found the petitioner entitled to an interim order. Consequently, the court stayed the recovery proceedings initiated by the respondents against the petitioner until the next listing date. This decision was based on the principle that recovery of unpaid tax should be carried out in accordance with the prescribed procedures under Section 87 of the Finance Act, 1994.

3. The judgment highlighted the importance of adjudication in determining the quantum of service tax to be paid, emphasizing the need to follow due process before making recovery demands. By staying the recovery proceedings, the court sought to prevent arbitrary actions and ensure that the petitioner's rights were protected pending a proper adjudication of the tax liability. The court's decision was guided by legal principles aimed at upholding fairness and procedural correctness in matters of tax recovery.

4. The court's ruling granted the petitioner relief by staying the recovery proceedings until the next listing date. This interim order aimed to safeguard the petitioner's interests and prevent any unjust or arbitrary recovery actions by the respondents. The judgment underscored the significance of following statutory procedures and conducting proper adjudication before enforcing tax recovery measures, aligning with the legal framework governing tax liabilities and procedures under the Finance Act, 1994.