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2018 (1) TMI 872 - HC - Service TaxMaintainability of petition - requirement of pre-deposit - Held that - entire service tax payable on reverse charge basis on the commission paid to the agents, has been paid. The said position is admitted and accepted by the respondents and is also not challenged and contested in the order-in-original. The contention of the respondent is that the petitioner must also pay in addition and over and above 12% service tax, the amount received from the agents under the mutual agreement in view of Section 73A (2) notwithstanding the payment made. As the petitioner has paid full amount of service tax, which is an accepted and admitted position, on reverse charge basis on the commission payment, we would direct the Tribunal not to dismiss the appeal preferred by the petitioner on the ground of pre-deposit under direction (ii), provided the petitioner has made pre-deposit in accordance with law in respect of other adjudication subject matter of the order-in-original dated 29th January, 2015. Petition disposed off.
Issues:
Challenge to order-in-original dated 29th January, 2015 by Max Life Insurance Company Limited regarding service tax demand and penalty under Section 78 of the Finance Act, 1994. Analysis: 1. The petitioner contested the order-in-original, which confirmed a service tax demand of ?100,05,78,705 not deposited in the government exchequer during 2006-07 to 2012-13, and challenged the penalty imposed under Section 78 of the Finance Act, 1994 for suppressing material facts related to the service tax issue. 2. The High Court granted the petitioner the right to appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on other aspects of the order-in-original, while the challenge to specific directions remained pending before the Court. 3. The respondent argued against the writ petition, citing the availability of an alternative remedy through appeal, emphasizing that challenging parts of the order before different forums would not be permissible. 4. The petitioner contended that they had paid the full service tax on reverse charge for commissions to agents at the rate of 12%, with a mutual agreement for a partial refund of the service tax component, citing relevant legal precedents to support their position. 5. The Court addressed the issue of maintainability of the writ petition despite the alternative remedy, referencing relevant Supreme Court and High Court judgments to consider the peculiar circumstances of the case. 6. Acknowledging the multiple issues decided in the order-in-original, the Court highlighted the need to avoid piecemeal examination and directed the petitioner to address all aspects before the CESTAT, except for specific directions under challenge. 7. Emphasizing the requirement of pre-deposit, the Court noted that the petitioner had paid the entire service tax due on reverse charge basis, directing the Tribunal not to dismiss the appeal based on pre-deposit grounds, provided other adjudication matters were pre-deposited as per law. 8. The Court permitted the petitioner to file an amendment application before CESTAT to challenge the specific directions under dispute within a specified timeframe, ensuring the appeal would not be dismissed solely due to the timing of the amendments. 9. The Court issued directions to address the exceptional circumstances of the case, clarifying that the order should not be considered a precedent for other cases and urging CESTAT to expedite the hearing of the appeal. 10. The writ petition was disposed of with a clarification that no comments on the merits were made, leaving it to CESTAT to examine the issues independently without influence from the Court's observations.
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