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2019 (8) TMI 493 - HC - Service TaxAppealable Order or not - recovery of service tax - Sharing of revenue - double levy of tax on freight - Section 129A of the Act - alternative remedy - HELD THAT:- The exercise of this writ jurisdiction is discretionary and it is not exercised only because it can be exercised. Therefore, the Courts have refused to exercise discretion under Article 226 of the Constitution of India, where an efficacious alternative remedy to obtain the same relief is available, as a self imposed limitation - Therefore, we now examine the submission on behalf of the Petitioner to decide whether this is a fit case to exercise our discretion, even though an efficacious alternative remedy of appeal under the Act from the impugned order dated 21 December 2016 to the Tribunal is available. The first submission is that in view of the status of the Petitioner, the Writ Court should exercise its discretion and entertain this petition - HELD THAT:- The status of a party can never be the basis of exercising discretion to entertain a writ. In fact, the discretion is exercised on the basis of the action of the authority being without jurisdiction and not on the basis of the status of the party moving the Court. To decide on the basis of the status of the party would be the very antithesis of the rule of law, viz. equality before the law, in the absence of any statutory distinction. The fact that the Petitioner is a Limited Company, has shares distributed in their entirety between the Central and State Governments does not warrant a different treatment under the Act. There is no reason, at this stage, to set aside the order of the Commissioner and restore the show cause notice to Commissioner so as to only compel the Revenue to follow the Master Circular and keep the show cause notice in abeyance. Question of tax on the entire freight having been collected - HELD THAT:- It is not open to the Revenue to collect again a part of the consideration as service tax. This is an issue, which is best left to the appellate authority to deal with. It is an issue on merits. Therefore, no occasion to entertain this petition can arise. In these circumstances, we are not exercising our extraordinary jurisdiction to entertain this petition. Thus, petition dismissed. However, we make it clear that as stated on instructions by Mr. Nankani for the Petitioner, in case the Petitioner does file an appeal within a period of four weeks from today, then the Tribunal would consider the appeal on merits, without taking up the issue of limitation - petition disposed off.
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