2016 (7) TMI 472 - HC - Service Tax

Waiver of pre-deposit - tribunal directed the assessee to pre-deposit 2 crores - maintainability of writ petition - alternative appellate remedy - Held that - To the extent that the Division Bench of this Court interpreted in Metal Weld Electrodes, the expression any order to mean all orders and held that therefore, appeals are maintainable against these orders, we have no quarrel. But, the opinion expressed by the Division Bench in Metal Weld Electrodes 2013 (11) TMI 240 - MADRAS HIGH COURT in paragraph 81 of its decision that writ petitions are not maintainable, cannot be accepted by us for two reasons. The first reason is that in the second part of paragraph 38 of Rajkumar Shivhare 2010 (4) TMI 432 - SUPREME COURT , the Supreme Court has carved out certain exceptional circumstances, in which, the writ petitions are maintainable. Therefore, the reading of Rajkumar Shivhare by the Division Bench in Metal Weld Electrodes may not be fully correct. The second reason as to why we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is the answer provided in paragraph 80 to the reference alone can be taken as having arisen directly for consideration before the Division Bench. It is too well settled that a judgment is a precedent for what it lays down and not what follows out of it. Therefore, we are of the considered view that the answer given in paragraph 80 of its decision by the Division Bench in Metal Weld Electrodes, is perfectly correct. But, at the same time, in exceptional circumstances carved out in the second part of paragraph 38 of the decision of the Supreme Court in Rajkumar Shivhare, the writ petitions are also maintainable. However, such writ petitions cannot be posted before Single Judges. They have to be posted only before the Division Benches dealing with tax cases. This will avoid the assessees attempts to have two remedies before this Court as against an order, against which, even an appeal would normally lie before a Division Bench. The grievance of the writ petitioner is that without considering any of the issues raised, the Tribunal has passed a conditional order for a predeposit. According to the writ petitioner, they are executing a work for Government Departments as well as engaged in constructing houses to tsunami victims and that all of them are completely exempt. - This aspect, though raised by the writ petitioner, has not at all been considered by the Tribunal while deciding the application for waiver. - Matter remanded back to tribunal.

Summary

Issues:
1. Appealability of orders passed by the Tribunal on applications for waiver of predeposit.
2. Maintainability of writ petitions against orders passed by the Appellate Authorities or the Tribunal on applications for stay or applications for waiver of predeposit condition.

Analysis:
1. The writ petition challenged an order by the Tribunal requiring the petitioner to make a predeposit of ?2 crores for entertaining the appeal and granting a stay. Initially heard by a Single Judge, the matter was referred to a Division Bench due to conflicting decisions on the appealability of such orders. The Division Bench, in a previous case, held that orders passed on applications for waiver of predeposit are appealable under relevant sections of the Central Excise Act and Customs Act. The Division Bench further ruled that writ petitions are not maintainable in such cases.

2. The High Court disagreed with the Division Bench's opinion that writ petitions are not maintainable against orders passed by Appellate Authorities or the Tribunal on applications for stay or waiver of predeposit. Citing a Supreme Court decision, the High Court highlighted exceptional circumstances where writ petitions can be maintained. The Court emphasized that the opinion expressed by the Division Bench cannot be fully accepted as it did not consider the exceptional circumstances outlined by the Supreme Court. The High Court clarified that while appeals are generally maintainable, in exceptional cases, writ petitions can also be filed, but they should be heard by Division Benches dealing with tax cases to prevent dual remedies.

3. The petitioner's grievance was that the Tribunal passed a conditional order for predeposit without considering the issues raised, including exemptions for work done for Government Departments and housing construction for tsunami victims. The Tribunal failed to address these contentions while deciding on the waiver application. Consequently, the High Court allowed the writ petition, set aside the impugned order, and directed the Tribunal to hear the application for predeposit considering the raised contentions and deciding in accordance with the law. No costs were awarded, and the matter was closed.