2022 (3) TMI 53 - HC - Service Tax

Maintainability of petition - availability of alternative remedy of appeal - requirement of making pre-deposit - HELD THAT - This writ petition is disposed off by giving liberty to the petitioner to file an appeal against the impugned Order-in-Original No.15/2021-ST dated 29/30.11.2021 within a period of fifteen days from the date of receipt of a copy of this order. In case such an appeal is filed before the Appellate Commissioner and mandatory pre-deposit is made by the petitioner, the Appellate Commissioner shall consider and dispose the same on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of this order - petition disposed off.

Summary

Issues:
The writ petition disposed due to alternate remedy against Impugned Order-in-Original; Ignoring petitioner's reference to a previous decision by the Hon'ble Division Bench; Requirement for the petitioner to file an appeal before the Appellate Commissioner; Pre-deposit of 7.5% of deposited tax under Section 35F of the Central Excise Tax, 1944; Liberty granted to the petitioner to file an appeal within fifteen days; Appellate Commissioner to consider and dispose of the appeal within four weeks; Disposal of the writ petition with no costs.

Analysis:
The High Court of Madras, presided over by Hon'ble Mr. Justice C. Saravanan, disposed of the writ petition at the time of admission, acknowledging the petitioner's alternate remedy against the Impugned Order-in-Original No.15/2021-ST dated 29/30.11.2021. The petitioner contended that the issue at hand aligns with a previous decision of the Hon'ble Division Bench in Nandhini Constructions case, but the respondent disregarded this reference and upheld the demand in the Impugned Order.

Despite the petitioner's assertion regarding the applicability of the Division Bench decision, the respondent addressed the issue based on the petitioner's submission in the impugned order. The Court noted the necessity for a detailed assessment of whether the petitioner is entitled to the benefits of the prior decision, emphasizing the need for the petitioner to pursue the remedy by filing an appeal before the Appellate Commissioner.

In line with the provisions of the Finance Act, 1994, the Court directed the petitioner to pre-deposit 7.5% of the deposited tax under Section 35F of the Central Excise Tax, 1944, for the appeal process. The petitioner was granted liberty to file an appeal against the Impugned Order within fifteen days, with a mandate for the Appellate Commissioner to consider and decide on the appeal within four weeks, taking into account the petitioner's submissions and the relevance of the Division Bench decision in the Nandhini Constructions case.

Ultimately, the writ petition was disposed of with the mentioned observations, and no costs were imposed. The connected Writ Miscellaneous Petition was consequently closed, marking the conclusion of the legal proceedings in this matter.