2017 (5) TMI 1147 - HC - Service Tax

Petitioner Must Exhaust Statutory Appeal First

The Commissioner of Mettur Municipality Versus The Assistant Commissioner of Central Excise & Service Tax, The Superintendent of Central Excise, The Branch Manager, State Bank of India Limited, The Additional Commissioner of Central Excise & Service Tax

The High Court held that the petitioner should have pursued the statutory appeal remedy before the First Appellate Authority instead of directly ... Alternative statutory appellate remedy to file an appeal - Held that: - the petitioner has to only seek for alternative remedy before the First Appellate Authority and canvass all the points raised in this writ petition. As it is admitted that the petitioner has also paid more than 60% of the tax demand, there cannot be any difficulty for the petitioner to seek for an Interim Stay of further recovery, pending disposal of the first appeal - petition allowed by way of remand. Issues:1. Availability of statutory appeal remedy before the First Appellate Authority.2. Failure to avail the statutory appeal remedy before approaching the High Court.3. Payment of more than 60% of the tax demand by the petitioner.4. Granting liberty to the petitioner to file a first appeal before the First Appellate Authority.5. Direction to the respondents to raise the bank attachment order.Analysis:1. The High Court observed that a statutory appeal remedy is available to the petitioner before the First Appellate Authority against the original order passed by the first respondent. The petitioner had not availed this remedy before rushing to the High Court after the issuance of a consequential demand notice.2. The petitioner's Senior Counsel argued that the appeal was not filed in time due to a change of officer in the petitioner's Municipality. The Counsel also mentioned that a stay had been granted by the Supreme Court against recovery before a certain date, but it was clarified that this stay was not applicable to the petitioner's case specifically.3. The respondents' counsel highlighted that the petitioner had paid more than 60% of the tax liability, indicating a significant payment towards the demand. It was suggested that the First Appellate Authority could consider granting an interim stay on further recovery pending the appeal.4. The Court emphasized that the petitioner should have pursued the alternative remedy before the First Appellate Authority and raised all contentions there. The petitioner was granted liberty to file a first appeal within four weeks, and the Appellate Authority was directed to consider the appeal on its merits without reference to the question of limitation.5. Considering the payment made by the petitioner and the availability of the appeal process, the respondents were directed to raise the bank attachment order. The Court made it clear that the respondents could proceed against the petitioner based on the Appellate Authority's decision in accordance with the law.This detailed analysis of the judgment provides insights into the issues addressed by the High Court, the arguments presented by both parties, and the Court's decision regarding the statutory appeal remedy, payment made by the petitioner, and the direction for filing a first appeal before the Appellate Authority.