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TMI Blog2021 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. The petitioner itself had raised the issue of applicability of VAT by filing application under Section 59 of the 'Act 2008' and vide order dated 14.12.2015 the petitioner has been held liable for VAT. Admittedly the said order has been challenged before the learned Commercial Tax Tribunal Lucknow vide appeal no. 2 of 2021 as such considering the order passed under Section 59 of the 'Act 2008' and the assessment order now passed there cannot by any occasion for this Court to entertain the instant petition. When the facts of the present case are tested on the touchstone of the law laid down by the Hon'ble Apex Court in the case of THE ASSISTANT COMMISSIONER OF STATE TAX AND OTHERS VERSUS M/S COMMERCIAL STEEL L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to service tax; IV. Issue a writ, order or a direction to State of U.P., i.e. Respondent No. 1, to seek adjustment of Service Tax collected by Union of India, i.e. Respondent no. 4, from the Petitioner and that the balance Service Tax remaining with the Union of India, after adjustment, be refunded to the Petitioner along with interest, in the event this Hon'ble Court declares that the endto- end ATM management services provided by the Petitioner is not liable to Service Tax but is liable to VAT as transfer of right to use; 3. A preliminary objection has been taken by Shri Sanjay Sarin, learned Additional CSC that as the petitioner has challenged the assessment order passed under Section 28 read with Section 32 of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertain the petition and decide the said issue. 6. On the other hand Shri Sanjay Sarin has placed reliance on recent judgement of Hon'ble Apex Court passed in Civil Appeal No. 5121 of 2021 in re: The Assistant Commissioner of State Tax others vs M/s Commercial Steel Ltd decided on 03.09.2021 to contend that once the petitioner has statutory remedy available under Section 55 of the 'Act 2008' and though the existence of the said remedy is not an absolute bar to the maintainability of the writ petition under Article 226 of the Constitution of India yet the petition can only be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be allowed to resile and say that the impugned assessment order is wrong and thus the petitioner cannot be allowed to blow hot and cold in the same breath. 10. Heard learned learned counsel for parties and perused the record. 11. From the arguments raised by the learned counsel for respective parties and perusal of the records it is apparent that the petitioner has challenged the assessment order passed under the 'Act 2008' against which admittedly a statutory remedy of appeal is available to the petitioner. The petitioner itself had raised the issue of applicability of VAT by filing application under Section 59 of the 'Act 2008' and vide order dated 14.12.2015 the petitioner has been held liable for VAT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arti Airtel Ltd (Supra) would also not be applicable. 15. So far as the judgement of Paradip Port Trust (Supra) is concerned again there cannot be any quarrel to the proposition of law laid down by the Hon'ble Apex Court yet in the instant case considering the order passed under Section 59 of the 'Act 2008' there cannot be any question of the writ court entertaining the present petition. 16. Even otherwise Hon'ble Apex Court in the recent judgement in the case of M/s Commercial Steel Ltd (Supra), while considering a similar case, has held as to when despite existence of statutory remedy, a writ would be maintainable. For the sake of convenience, the relevant paragraphs are reproduced as under: 11. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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