2018 (2) TMI 1188 - HC - Service Tax

Levy of service tax - activity done by the petitioner namely erection, maintenance and repairs of street lights for the use of Municipal Corporation - Held that - The inability to pay the mandatory pre-deposit cannot be a ground to entertain a writ petition - Petition not maintainable - petition dismissed.

Summary

Issues:
Challenge to order imposing service tax on street light maintenance for Municipal Corporation.

Analysis:
The petitioner contested an order by the respondent imposing service tax on activities related to street light erection, maintenance, and repairs for the Municipal Corporation. The petitioner argued against being directed to appeal before the Customs, Excise, and Service Tax Appellate Tribunal due to various reasons. Firstly, citing a Mumbai Tribunal decision not followed by the Commissioner as grounds for appeal avoidance. Secondly, referring to a previous order by the Tribunal in the petitioner's case granting partial relief, which was not presented to the Commissioner. Lastly, the petitioner cited financial difficulties hindering the ability to pay the mandatory pre-deposit of 7.5% of the duty demanded.

The court, after deliberation, dismissed the petitioner's arguments for bypassing the appeal remedy. It stated that financial constraints do not justify avoiding the appeal process. Regarding the Mumbai Tribunal decision, the court noted that the Supreme Court entertained special leave petitions on the matter, indicating a significant legal question was involved. Additionally, the court highlighted that the petitioner could present the previous Tribunal order to the Commissioner by filing an appeal against the impugned order. Consequently, the court deemed the writ petition as not maintainable and dismissed it, allowing the petitioner to file an appeal before the Tribunal. No costs were awarded, and the connected Writ Miscellaneous Petition was also dismissed.