Dismissal of Writ Petition on Service Tax Demand under Finance Act, 1994

The High Court dismissed the writ petition challenging a service tax demand, interest, and penalties under the Finance Act, 1994, deeming it not maintainable. The petitioner was directed to pursue the available remedy of appealing to CESTAT, as factual matters regarding the appeal timeline and receipt date of the Order-in-Original needed to be addressed through the appellate process. The petitioner was granted the option to approach CESTAT, with the exclusion of time from the writ petition filing until the receipt of the order's certified copy for limitation calculation. No costs were awarded, and related miscellaneous petitions were closed.

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Issues:
Challenge to Order-in-Original dated 28.12.2016 - Service tax demand, interest, and penalties under various sections of the Finance Act, 1994. Appellate authority's decision on appeal petition being time-barred. Availability of alternate remedy of filing an appeal before CESTAT. Maintainability of the writ petition.

Analysis:
The petitioner contested the Order-in-Original dated 28.12.2016, challenging the service tax demand of Rs. 3,05,826 under the proviso to Section 73 of the Finance Act, 1994. Additionally, interest on the amount under Section 75, penalty equivalent to tax demanded under Section 78, and a penalty of Rs. 10,000 under Section 77 were imposed. An appeal was lodged by the petitioner before the appellate authority, which deemed the appeal petition time-barred. The appellate authority noted evidence indicating the petitioner received the Order-in-Original on 31.01.2017, contrary to the petitioner's claim of receiving it on 04.03.2017, deeming the latter submission incorrect.

The High Court acknowledged that the petitioner had an available remedy of appealing to the CESTAT against the impugned order. The issue of whether the appeal was filed within the stipulated time frame and the accuracy of the date of receipt of the Order-in-Original, as asserted by the assessee, were deemed factual matters. Consequently, the court held that the petitioner must pursue the appeal remedy before the CESTAT, given the factual nature of the issues in question.

In light of the above, the High Court concluded that the writ petition was not maintainable and subsequently dismissed it. The petitioner was granted the option to approach the CESTAT if advised to do so. Should the petitioner choose to move to the CESTAT, the period from the filing date of the writ petition (13.10.2017) until the receipt of the certified copy of the order would be excluded when calculating the limitation period. No costs were awarded, and any connected miscellaneous petition was closed as a consequence of the judgment.

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