2018 (1) TMI 219 - HC - Service Tax

Principles of natural justice - the petitioner has not produced records, whereas all records are available - alternative remedy - Held that - the question would be as to whether there were any documents placed by the petitioner or not and if documents were available, whether they were sufficient to show that the case requires to be decided in favour of the petitioner are all factual issues which the petitioner has to necessarily agitate before the Tribunal. The Tribunal being a fact finding authority is entitled to re-examine and examine the facts which may be placed before it and then come to a conclusion. Merely because there will be a burden on the assessee to make pre-deposit cannot be a reason to byepass the appeal remedy available under the Act. Petition dismissed as not maintainable.

Summary

Issues:
Challenge to order confirming Service Tax demand, interest, and penalty under Finance Act, 1994 without availing alternative remedy before CESTAT.

Analysis:
The petitioner challenged an order confirming a Service Tax demand, interest, and penalty under the Finance Act, 1994 without utilizing the alternative remedy available before the CESTAT. The respondent had confirmed the demand in the show cause notice, levied Service Tax, interest, and imposed penalties. The petitioner sought another opportunity to produce necessary documents and contest the matter on merits before the respondent. The impugned order highlighted that the petitioner's case relied on previous orders and factual issues regarding consideration from foreign buyers or Indian exporters. The Tribunal, as a fact-finding authority, is empowered to re-examine facts and reach conclusions. The burden on the assessee to make a pre-deposit does not justify bypassing the appeal remedy under the Act.

The Court emphasized that the petitioner must address factual issues before the Tribunal and utilize the appeal remedy available under the Act. The Writ Petition was dismissed as not maintainable, but the petitioner was granted the option to file an appeal before the CESTAT. No costs were awarded, and the connected miscellaneous petition was closed. The judgment highlighted the importance of utilizing available legal remedies and addressing factual issues through the appropriate channels rather than seeking redress directly from the Court.