2007 (12) TMI 185 - HC - Service Tax

Court orders continued service tax payment pending resolution in Finance Act writ petition

The court directed further adjudication through affidavits in a writ petition challenging an order for registration under the Finance Act, 1994. The ... Registration - Petitioner applied for registration under the classification of “Business Auxiliary Service”, but Commissioner directed registration as clearing and forwarding agent - Revenue case is that since the order has been passed the petitioner ought to prefer an appeal against this order – petitioner contend that this order is not an appealable order – held that the writ petition has to be adjudicated upon after filing of affidavit - In the meantime, petitioners shall pay tax under BAS Issues:Challenge to order directing registration under Finance Act, 1994 in a different category than applied for earlier; Nature and activities of petitioners falling under Business Auxiliary Service; Appealability of the order.Analysis:The judgment pertains to a writ petition challenging an order by the Commissioner of Service Tax directing the petitioners' registration as clearing and forwarding agents under the Finance Act, 1994, despite their initial application under the classification of Business Auxiliary Service. The impugned order, issued in compliance with a previous court directive, was contested on grounds of improper classification and the nature of the petitioners' activities. The petitioner's counsel argued against the order's appealability, suggesting it was not subject to appeal.The court considered both counsels' submissions and decided that the writ petition required further adjudication through affidavits. It directed the filing of an affidavit in opposition within four weeks, with a two-week period for a reply. During this time, the petitioners were instructed to continue paying service tax at the rate applicable to Business Auxiliary Service. The court issued an interim order to this effect, noting that while the tax rate was the same for both categories, a different classification could alter the tax liability from a specific date. The court left the question of the writ petition's maintainability open and scheduled the matter for a hearing in the following month.The judgment concluded by instructing all parties to act upon a signed copy of the order and abide by the usual undertaking.