ST - Petitioner cannot challenge one part of order-in-original before High Court and another portion before CESTAT: HC
By TIOL News Service
NEW DELHI, JAN 18, 2018: THE petitioner invoked writ jurisdiction impugning the O-in-O dated 29th January, 2015 passed by the CCE & ST to the following extent-
"ii. I, hereby, confirm the demand of Service Tax amounting to Rs.100,05,78,705 (Rupees one hundred crore five lac seventy eight thousand seven hundred five only), as detailed in TABLE-2 to the Show Cause Notice, which was so deducted/recovered from individual insurance agents/corporate agents as Service Tax and not deposited in the Government exchequer as required in terms of Section 73A(2) of the Finance Act, 1994 during the period 2006-07 to 2012-13 (upto June, 2012), and order for recovery of the same from them under the proviso to Section 73A (3) of the Finance Act, 1994;"
Also under challenge is the penalty imposed u/s 78 of FA, 1994 (para viii refers).
When the petition had come up for hearing, by an order dated 29th April, 2015, the Court had issued notice relating to direction No. (ii) and direction No. (viii) to the extent it relates to direction No. (ii).
The said order also granted the petitioner the right to file appeal before the CESTAT. The petitioner, it is an accepted position has filed an appeal before CESTAT against the order-in-original on other aspects.
Incidentally, the writ petition remained pending since then before the Court.
The matter was heard recently.
The respondent Revenue opposed the present writ petition in view of the alternative remedy by way of appeal. Inasmuch as it is submitted that the petitioner cannot challenge one part of the order-in-original before the High Court and another portion before CESTAT.
Both sides cited case laws in the matter of maintainability or otherwise of the writ petition.
The High Court, therefore, inter alia, observed -
+ Rather peculiar and odd situation has arisen in the present case as the order-in-original decides several issues and aspects.
+ Thus, we have a situation where the petitioner has invoked a statutory remedy of appeal before the CESTAT challenging the order-in-original dated 29th January, 2015 on all aspects, except direction No. (ii) and direction No. (viii) to the extent it relates to direction No. (ii). In these circumstances, we do not think it will be appropriate and proper for us to examine the impugned order in piecemeal. In fact, while deciding the writ petition, we would have to examine aspects and issues, which would also arise before CESTAT.
+ 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 order-in-original dated 29th January, 2015.
+ We further permit the petitioner to file an amendment application before CESTAT and challenge the direction No. (ii) and direction No. (viii) to the extent it relates to direction No. (ii) in the impugned order dated 29th January, 2015 within a period of three weeks from today. In case such amendment application is moved, the same would be considered by the CESTAT in accordance with law and it would not be dismissed on the ground that the amendments sought are belated or beyond time.
Clarifying that the order is passed in the particular facts of the present case, which are exceptional, and cannot be treated as a precedent, the High Court requested the CESTAT to take up the appeal for hearing as expeditiously as possible.
The Writ Petition was disposed of.
(See 2018-TIOL-108-HC-DEL-ST)
