2019 (7) TMI 281 - HC - Service Tax

Alternative remedy of appeal - Recovery of Service Tax - HELD THAT - Mr.Dwivedi, learned counsel for the Revenue states that the challenge to order of the Tribunal in COMMISSIONER, SERVICE TAX, DELHI-III, NEW DELHI VERSUS M/S. BHARUCH DAHEJ RAILWAY COMPANY LTD., M/S. KRISHNAPATNAM RAILWAY COMPANY LTD. 2019 (4) TMI 26 - CESTAT NEW DELHI is under active consideration of the Revenue. Mr.Dwivedi on instructions states that if an adjournment of four weeks is given, he will be in a position to inform the court whether the order dated 25th March, 2019 of the Tribunal in respect of M/s.Bharuch Dahej Railway Co. Ltd. has been accepted by the Revenue or not. This petition is adjourned to 1st August, 2019.

Summary

Issues:
1. Challenge to the order dated 21st December, 2016 passed by the Commissioner, Service Tax, Mumbai for recovery of Service Tax under the Finance Act, 1994.
2. Comparison of the petitioner's case with the case of M/s. Bharuch Dahej Railway Co. Ltd. where the Service Tax Authorities withdrew notices for recovery of service tax.
3. Dismissal of the Revenue's appeal by the Customs, Excise and Services Tax Appellate Tribunal (Tribunal) on 25th March, 2019 in the case of M/s. Bharuch Dahej Railway Co. Ltd.
4. Active consideration by the Revenue to challenge the Tribunal's order dated 25th March, 2019.

Analysis:
1. The petition challenges the order dated 21st December, 2016 by the Commissioner, Service Tax, Mumbai for Service Tax recovery under the Finance Act, 1994. The court noted the availability of an alternative remedy before the Customs, Excise and Service Tax Appellate Tribunal (Tribunal) and was initially disinclined to interfere. The petitioner highlighted similar cases where notices for service tax recovery were withdrawn, specifically referring to M/s. Bharuch Dahej Railway Co. Ltd., indicating discriminatory treatment. The court queried the Revenue's acceptance of the order dated 25th January, 2016 passed by the Delhi Commissionerate, suggesting parity in treatment for similar activities.

2. Subsequently, it was revealed that the Revenue's appeal challenging the Delhi Commissioner's order in the case of M/s. Bharuch Dahej Railway Co. Ltd. was dismissed by the Tribunal on 25th March, 2019. The petitioner argued for setting aside the impugned order based on the similarity of facts and legal position with the aforementioned case. Emphasizing the principle of treating similarly situated parties equally, the petitioner sought relief following the dismissal of the Revenue's appeal and its non-further challenge.

3. The court inquired about the Revenue's intention to challenge the Tribunal's order dated 25th March, 2019 before a higher forum. The Revenue, through its counsel, indicated that the challenge was under active consideration and requested a four-week adjournment to provide clarity on the acceptance of the Tribunal's order regarding M/s. Bharuch Dahej Railway Co. Ltd. The petition was adjourned to 1st August, 2019, allowing time for the Revenue to confirm its stance on the Tribunal's decision.

This detailed analysis of the judgment reflects the court's consideration of alternative remedies, the principle of equality before the law, and the ongoing legal developments surrounding the Service Tax recovery issue.