2015 (12) TMI 92 - HC - Service Tax

Demand of service tax - C&F/CHA, Storage and Warehousing services - Held that - petitioner has an effective alternate remedy against Ext.P7 order, by way of approaching the Customs, Excise and Service Tax Appellate Tribunal, through a duly constituted appeal under the Finance Act 1994 as amended. Taking note of the fact that the proceedings that culminated in Ext.P7 order were initiated by a show cause notice dated 15.10.2013, which is well before the amendment dated 06.08.2014 in the Finance Act, 1994 which mandates that an appeal before the CESTAT must be accompanied by a fee of 7.5% of the tax amounts demanded by the adjudication order, and the fact that this Court has in the decision dated 02.03.2015 in WP(C) No.6173 of 2015 rendered in a case of an assessee similarly situated as the petitioner in the instant writ petition, made it clear that the appeal to be filed by the petitioner would be governed by the statutory provisions as they stood prior to the amendment introduced with effect from 16.08.2014, while dismissing the writ petition in its challenge against Ext.P7 order, I make it clear that, if the petitioner prefers a duly constituted appeal under the provisions of the Finance Act, 1994, as they stood prior to 16.08.2014, then the appellate tribunal shall number the appeal and consider the application, if any filed by the petitioner for waiver of pre- deposit and stay of recovery of amounts confirmed against him by Ext.P7 order, on merits, and thereafter proceed to hear the appeal itself in due course. - Appeal disposed of.

Summary

Issues:
Challenge against Ext.P7 order confirming service tax demand and penalty for the period from 01.07.2008 to 31.03.2013; Plea regarding limitation; Propriety of confirming demand based on Rules 5 and 6 or Service Tax Valuation Rules; Availability of alternate remedy through Customs, Excise and Service Tax Appellate Tribunal; Applicability of statutory provisions pre and post the amendment in the Finance Act, 1994.

Analysis:
The petitioner, a Private Limited Company providing C&F/CHA, Storage, and Warehousing services, challenged the Ext.P7 order confirming service tax demand and penalty for a specific period. Various contentions were raised, including the plea regarding limitation and the propriety of confirming the demand based on specific rules. The court noted that the petitioner has an alternate remedy through the Customs, Excise and Service Tax Appellate Tribunal under the Finance Act, 1994. The court highlighted that the appeal should be filed in accordance with the statutory provisions as they stood before a particular amendment, emphasizing the need for the petitioner to approach the appellate tribunal for waiver of pre-deposit and stay of recovery of the confirmed amounts.

The court emphasized that the petitioner must file the appeal along with any waiver application before the appellate tribunal within a specified deadline. Additionally, considering an interim order passed by the Division Bench in a related matter, the petitioner was directed to provide an undertaking to pay the appeal fee as prescribed under the Finance Act, 1994, in case of any reversal in further proceedings. The judgment clarified the procedural steps and timelines for the petitioner to pursue the appeal effectively, ensuring compliance with the relevant statutory provisions and court directives. The ruling provided a structured approach for the petitioner to address the issues raised in the writ petition and seek redressal through the appropriate legal channels, safeguarding the petitioner's rights and interests within the legal framework.