2018 (2) TMI 1055 - HC - Service Tax

Maintainability of petition - classification dispute - alternative remedy - Held that - in the instant case the petitioner/assessee did not place the decision of the Division Bench of this Court in the case of Commissioner of C. Ex. Tiruchirappalli Vs. Indian Humes Pipes Co. Ltd. 2015 (9) TMI 479 - MADRAS HIGH COURT nor the decision in the case of Lanco Infratch Ltd. Vs. Commissioner of Customs Central Excise and Service Tax Hyderabad 2015 (5) TMI 37 - CESTAT BANGALORE (LB) before the respondent at the time of adjudication - this Court is inclined to grant one more opportunity to the assessee to go before the Assessing Officer and putforth their case despite the fact that they have failed to place the decision - petition allowed by way of remand.

Summary

Issues:
Challenge to order-in-original confirming service tax demands; Maintainability of Writ Petition due to classification dispute and alternate remedy of appeal.

Analysis:
The petitioner, a construction company, challenged an order confirming service tax demands related to the construction of underground sewerage. The Revenue argued that the classification dispute cannot be resolved in a Writ Petition and the petitioner should have pursued the alternate remedy of filing an appeal before the Commissioner (Appeals). The Court acknowledged the general principle of exhausting alternate remedies but made a departure due to specific reasons.

The dispute revolved around the classification of the activities as 'Erection, Commissioning or Installation services' under the Finance Act, 1994. The petitioner argued that their work involved erection, installation, and commissioning of various structures and machineries, which should be classified as Erection, Commissioning, and Installation services rather than Commercial and Industrial Construction services. The respondent rejected the petitioner's contentions, citing a pending appeal against a relevant judgment.

The petitioner contended that the respondent should have followed the decision in a specific case, emphasizing the importance of judicial discipline in following higher appellate authorities' orders. Additionally, the petitioner referred to a jurisdictional High Court decision supporting their position regarding the nature of the activity.

The Court noted that the petitioner did not present crucial decisions during the initial adjudication. Despite this, the Court granted the petitioner another opportunity to present their case before the Assessing Officer. This decision aimed to provide a fair chance to the petitioner and ensure proper consideration of relevant judgments. The Court set aside the impugned order and remanded the matter for fresh consideration by the respondent, emphasizing the importance of a personal hearing and submission of objections with reference to specific case laws.

In conclusion, the Writ Petition was allowed, the impugned order was set aside, and the matter was remanded for fresh consideration by the respondent. The petitioner was granted the opportunity to present their case with reference to relevant case laws, ensuring a fair assessment in accordance with the law.