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TMI Blog2018 (1) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner 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. - Writ Petition (Civil) No. 4264/2015 - - - Dated:- 3-1-2018 - MR. SANJIV KHANNA MR. CHANDER SHEKHAR JJ. Petitioner Through Mr. Parag P. Tripathi, Sr. Advocate with Ms. Anuradha Dutt, Mr. Tushar Jarwal, Mr. Rahul Sateeja Mr. Aarush Bhatia, Advocates. Respondent T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (viii) to the extent it relates to direction No. (ii). The said order also granted to the petitioner right to file appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in respect of other aspects and findings in the order-in-original. The writ petition has remained pending since then before the Court. The petitioner, it is an accepted position has filed an appeal before CESTAT against the order-in-original on other aspects. 5. Counsel for the respondent has opposed the present writ petition in view of the alternative remedy by way of appeal. He submits that the petitioner cannot challenge one part of the order-in-original before the High Court and another portion before CESTAT. 6. Counsel for the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of alternative remedy, our attention is drawn to an order of the Supreme Court dated 22nd April, 2016 passed in Writ Petition (Civil) No. 1055/2013, Aircel Limited and Another versus The Commercial Tax Officer and Another and other connected matters, Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another versus Sri Seetaram Rice Mill, (2012) 2 SCC 108 and State of U.P. and Others versus M/s Indian Hume Pipe Company Limited, (1977) 2 SCC 724. 8. Counsel for the respondent, on the other hand, has relied upon decision of the Supreme Court in A.P. State Financial Corporation versus M/s Gar Re-Rolling Mills and Another, (1994) 2 SCC 647. 9. Rather peculiar and odd situation has arisen i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the mutual agreement in view of Section 73A (2) notwithstanding the payment made. The petitioner, as noticed above, has referred to several decisions in which the aforesaid aspect has been considered, including the judgment of the Tribunal in the case of HDFC Standard Life Insurance Company Limited (supra). 12. Be that as it may, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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