2015 (9) TMI 937 - HC - Service Tax

Maintainability of appeal - alternate remedy - Demand of service tax - It is also brought to the notice of this Court that similar assessees had already approached this Court at different points of time raising similar contention and that the said parties have been relegated to pursue the remedy before the competent authorities under the Statute. The learned counsel for the petitioner points out that the said parties had approached this Court at the stage of notice and not after passing the orders. This does not make any difference in so far as the petitioner is having an effective alternate remedy under Section 85 of the Finance Act, as made clear in the opening paragraph of the impugned order itself. That apart, the merit of the case has to be considered with reference to the facts and figures and this Court does not find it necessary to act as a fact finding agency ; more so when, the petitioner is having other appropriate Forum to establish the same in accordance with law. In the said circumstances, the petitioner is relegated to pursue the matter by way of appeal, if so advised. - Decided against assessee.

Issues:
1. Whether the activities of a Co-operative Bank are subject to service tax under the Finance Act 1994?
2. Whether the petitioner's prayers for quashing an order, directing not to proceed with the order, and declaring non-leviability of service tax on various transactions are valid?
3. Whether the dismissal of SLP by the Apex Court regarding a similar matter affects the present case?
4. Whether the petitioner has an effective alternate remedy under Section 85 of the Finance Act?

Analysis:

1. The petitioner, a Co-operative Bank, argued that its activities do not fall under the definition of 'service' for attracting service tax under the Finance Act 1994. The petitioner relied on a Delhi High Court judgment in favor of similar entities, despite the Supreme Court dismissing the SLP without interference. The respondent contended that the dismissal of the SLP does not result in a merger, emphasizing the need for a thorough examination of the case's merits. The court noted that similar parties had raised similar contentions previously and were directed to pursue remedies under the statute. The court declined interference, stating that the petitioner could appeal through the appropriate forum, dismissing the writ petition without expressing an opinion on the raised points.

2. The petitioner sought a Writ of Certiorari to quash an order, a Writ of Mandamus to stop further proceedings, and a declaration of non-leviability of service tax on various transactions. The court, however, did not delve into the merits of these prayers and dismissed the petition without expressing any opinion on the petitioner's contentions. The court emphasized the availability of an alternate remedy under Section 85 of the Finance Act for the petitioner to pursue the matter through appeal.

3. The impact of the dismissal of the SLP by the Apex Court on a similar matter was discussed in the context of the present case. The court clarified that the dismissal did not automatically validate the Delhi High Court's judgment, emphasizing the need for a thorough examination of the merits of the case. The court highlighted that dismissal of the SLP did not result in a merger, and the petitioner was directed to pursue remedies through the appropriate statutory channels.

4. The court addressed the issue of whether the petitioner had an effective alternate remedy under Section 85 of the Finance Act. It was clarified that the petitioner could appeal through the appropriate forum to establish the case's merits in accordance with the law. The court emphasized that it was not necessary to act as a fact-finding agency, as the petitioner had other avenues to establish their claims. Consequently, the petitioner was directed to pursue the matter through appeal if advised to do so, indicating the availability of an effective alternate remedy under the statute.

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