TMI Blog2021 (10) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the opinion that the petitioner should prefer an appeal against the impugned order of assessment, but at the same time, the Tribunal should decide the Appeal No.02 of 2021, wherein it is said that the delay in filing the same has been condoned, within six weeks from the date a certified copy of this order is submitted before it. Parties are directed to cooperate in the matter. If an appeal is filed by the petitioner against the assessment order, the Appellate Authority is directed not to pass final order in appellate proceedings for a period of two months, so that the decision of the Tribunal is available for appropriate decision of the appeal - it is further provided that after a decision in the Appeal no. 2 of 2021 pending be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT Act, 2008, the transaction in question which is the supply of ATM Management Services by the petitioner to facilitate the customer services by the Bank to its customers, is purchase or sale of goods within the meaning of the aforesaid provisions or is it a 'service' extended by the petitioner within the meaning of the Finance Act, 1994 so as to be amenable to 'Service Tax'. He says that this issue cannot be decided by the Appellate Authority in an appeal against the Assessing Officer under the VAT Act, 2008, especially as, an application was filed by the petitioner under Section 59 of the VAT Act, 2008 for determination of a legal issue, which is maintainable even prior to the assessment proceedings so as to get a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He therefore says that this writ petition should be entertained and he is ready to withdraw the appeal filed against the order passed under Section 59 before the Tribunal. He says that the petitioner has already deposited an amount of about rupees two and a half crores as service tax and the levy of the said tax has been upheld right upto the C.E.S.T.A.T., but now, he is being made to pay an equal amount as value added tax that too on the same transaction, which is impermissible. Shri H.P. Srivastava, learned Addl. C.S.C. submits on the other hand, that having preferred an appeal against the order of the Commissioner under Section 59 before the Tribunal, the petitioner should join issue before the Tribunal and get the appeal decided. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion would lie under Section 58 of the Act, 2008. He, however, says that the said remedy will neither be efficacious, nor any substantial justice would be done for the reason, the scope of revision is very different and the petitioner will not be able to implead the Central Government which would be a necessary party, as one of the issues would be as to whether service tax is leviable or value added tax is leviable. Moreover, he says that instead of deciding this main issue, the petitioner should not be made to avail one alternative remedy after the other, as ultimately the issue would come up before this Court, unless of course, the Tribunal decides the matter in favour of the petitioners. He further says that another prejudice which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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