2018 (11) TMI 1160 - HC - Service Tax

Maintainability of petition - alternative remedy of appeal - Held that - Once the petitioner has got efficacious alternative remedy of statutory appeal, the same ought to have been availed by it before invoking the writ jurisdiction of this Court - The writ petition is accordingly disposed of by relegating the petitioner to avail the alternative remedy of appeal under Section 85 of the Finance Act, 1994. Condonation of delay in filing appeal - Held that - Since during the pendency of this writ petition, the time limit to file the appeal has expired, it appears that the prayer of the petitioner for condonation of delay in filing the appeal deserves acceptance - the Appellate Authority is directed that in case the petitioner files an appeal within a period of two weeks from today, the delay in filing the appeal may be condoned and the appeal may be decided on merit and in accordance with law. Condition of pre-deposit - Held that - It would meet the ends of justice, if the petitioner is asked to make such pre-deposit in respect of the liabilities other than the penalty equivalent to the amount of services tax. Consequently, the Appellate Authority shall, on making pre-deposit by the petitioner at the prescribed rate qua the services tax, interest or penalty of ₹ 10,0000/-, i.e., other than the penalty equivalent to the services tax, shall decide the appeal on merits. Petition disposed off.

Summary

Issues:
1. Confirmation of services tax demand, interest, and penalties.
2. Availability of alternative statutory appeal remedy.
3. Condonation of delay in filing appeal.
4. Pre-deposit requirement for appeal.

Confirmation of services tax demand, interest, and penalties:
The petitioner, a company, challenged an order confirming a services tax demand of ?1,90,84,482 along with interest and penalties under the Central Goods & Services Tax Act, 2017. The respondents justified the order, stating it was appealable under Section 85 of the Finance Act, 1994. The High Court noted that the petitioner had an alternative statutory appeal remedy available and should have pursued it before seeking writ jurisdiction. Consequently, the petition was disposed of, directing the petitioner to avail the appeal remedy.

Availability of alternative statutory appeal remedy:
The High Court emphasized that the petitioner had an efficacious alternative remedy of appeal under Section 85 of the Finance Act, 1994, which should have been utilized before approaching the court. The court held that since the petitioner had not availed the appeal remedy, the writ petition was disposed of, reiterating the importance of exhausting statutory remedies before resorting to writ jurisdiction.

Condonation of delay in filing appeal:
Acknowledging that the time limit for filing the appeal had expired during the pendency of the writ petition, the court considered the petitioner's request for condonation of delay. The court directed the Appellate Authority to accept the appeal if filed within two weeks, with the delay condoned. The interim relief granted by the court was extended for four weeks to allow the petitioner to seek further relief before the Appellate Forum.

Pre-deposit requirement for appeal:
Regarding the pre-deposit condition, the court found it just for the petitioner to make a pre-deposit concerning liabilities other than the penalty equivalent to the services tax amount. The Appellate Authority was instructed to decide the appeal on merits after the petitioner made the prescribed pre-deposit related to services tax, interest, or a penalty of ?10,000, excluding the penalty equivalent to the services tax. The petition was disposed of accordingly, with pending miscellaneous applications also addressed.