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2016 (9) TMI 1107 - HC - Service TaxValidity of CESTAT order - Tribunal dismissed the appeal on the ground that matter is pending before the High court - Doctrine of merger - renting of immovable property service - Held that:- this Court is deciding the issue as to whether such a transaction would attract service tax or would it be liable and exigible to tax under the Maharashtra Value Added Tax Act, 2002. We are of the view that the Tribunal erred in law in dismissing the appeal as not maintainable. A statutory appeal or a statutory right to appeal was availed of by the appellant/assessee to challenge the Orders-in-Original. Such an appeal was maintainable in law. Once it was so maintainable under the scheme of the Central Excise Act, 1944, which also applies to the levy, imposition and assessment of service tax so also its recovery, then, the Tribunal was bound to decide the appeal on merits. It could not have been dismissed as not maintainable only because the petitioner in the writ petition and the appellant before the Tribunal were pursuing both remedies. The statutory appeal of the assessee, in the absence of any restraint order by the High Court, was maintainable and could have been decided on merits and in accordance with law. If there was no restraint against passing of an adjudication Order, surely, against such an adjudication Order all statutory remedies, including an appeal are available. That is precisely what the appellant/assessee has done and the appeal could not have been dismissed as not maintainable. - Decided in favour of appellant
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