2018 (3) TMI 1833 - HC - Service Tax

Maintainability of appeal - efficacious and alternative remedy of statutory appeal - appropriate appellate forum - learned Single Judge found that the matter involved mixed questions of facts and law - jurisdictional error/breach of principles of natural justice - HELD THAT - There are no case for interference in appeal. This is for the simple reason that. the learned Single Judge has not entered into the merits of the case hut, having regard to the questions sought to be raised and after finding that the matter involved mixed questions of facts and law; and that a statutory remedy of appeal was available, the learned Single Judge only relegated the petitioner/appellant to such remedy of appeal and even provided for merit consideration of the appeal, if filed within 30 days irrespective of the question of limitation. It remains trite that the writ jurisdiction is essentially that of discretion and such exercise of jurisdiction can be declined for valid reasons, including the one of availability of efficacious and alternative remedy of statutory appeal. In the given set of facts and circumstances, when the learned single Judge has not found the present one to be a fit case for exercise of writ jurisdiction, we are unable to find any error or infirmity in the order impugned which may call for interference in appeal. Accordingly, these appeals are required to be dismissed. The appellant may prefer such an appeal within 30 days from today; and if any such appeal is filed within 30 days from today, the same may be examined by the Appellate Authority on its merits, while ignoring the question of limitation - appeal dismissed.

Summary

Issues:
1. Denial of exemption of payment of service tax by Assistant Commissioner of Central Excise and Service Tax.
2. Appeal against the order passed by the Assistant Commissioner.
3. Availability of statutory remedy of appeal.
4. Challenge to the re-assessment notice issued by the respondents.
5. Reference to the decision of the Hon'ble Supreme Court in a similar case.
6. Dismissal of the writ petitions by the learned Single Judge.
7. Lack of interference in appeal by the High Court.

Analysis:
1. The petitioner/appellant was aggrieved by the order passed by the Assistant Commissioner of Central Excise and Service Tax, which denied exemption of payment of service tax and raised a demand of service tax amounting to ?2,26,323 for the period from April 2013 to March 2015. The petitioner argued that the services provided to the Government were exempted from service tax as per Clause-12 of the Notification dated 20.06.2012. The submissions were countered by the Revenue.

2. The learned Single Judge found that the matter involved mixed questions of facts and law, which should be determined in the appellate forum. The Judge noted that the appeal against the order could be filed before the Commissioner of Central Excise (Appeals) under Section 85 of the Finance Act, 1994. No jurisdictional error or breach of natural justice was found, leading to the decline of writ jurisdiction by the Single Judge. The Judge allowed for filing an appeal within 30 days without raising objections about limitation.

3. The petitioner sought to challenge the re-assessment notice issued by the respondents, claiming it was without authority of law and caused prejudice. Reference was made to a Supreme Court decision to support the argument that re-assessment was not valid as no assessment had been conducted initially.

4. The High Court, after examining the matter, found no grounds for interference in appeal. The Single Judge had not delved into the merits of the case but directed the petitioner to the statutory remedy of appeal due to the mixed questions of facts and law involved. The Court reiterated the discretionary nature of writ jurisdiction and upheld the availability of an alternative remedy of statutory appeal.

5. The High Court emphasized that the exercise of writ jurisdiction could be declined for valid reasons, including the presence of an alternative statutory remedy of appeal. Since the Single Judge did not find the case suitable for writ jurisdiction, the High Court saw no error or infirmity in the impugned order, leading to the dismissal of the appeals.

6. The Court provided an opportunity for the appellant to file an appeal within 30 days from the judgment date, which would be examined on its merits by the Appellate Authority without considering the limitation issue. The appeals were ultimately dismissed, subject to the aforementioned observations.