2021 (5) TMI 287 - HC - Service Tax

Court dismisses writ petition challenging Order in Original, directs petitioner to appeal under Finance Act

The court dismissed the writ petition challenging the Order in Original, emphasizing the availability of an alternative remedy through appeal under the ... Principles of natural justice - service of order in original - levy of service tax - refund of amount paid under protest - HELD THAT:- This Court is of the view that the dispute, as to whether the petitioner was earlier communicated or not communicated the order dated 20.3.2017 cannot be considered by this Court in writ jurisdiction, particularly when it has been recorded in Annexure 11 that the same was earlier delivered to the petitioner at their business address as well as residential address. However, if the petitioner is disputing the delivery, it is for the petitioner to demonstrate the same before the appropriate authority. This Court is not inclined to entertain the present writ petition against the order in original dated 20.3.2017 Accordingly, the present writ petition is dismissed as not maintainable. Issues Involved:Challenge to Order in Original dated 20.03.2017; Communication of Order to Petitioner; Reconciliation of Accounts; Issuance of Notice in Form GST DRC 13; Double Payment of Liability; Alternative Remedy; Maintainability of Writ Petition.Analysis:1. Challenge to Order in Original dated 20.03.2017:The petitioner sought relief against the final order confirming the liability towards service tax, claiming the entire liability had been discharged in April 2014. The petitioner contended that the order was communicated only in November 2020, challenging the timeliness and validity of the communication.2. Communication of Order to Petitioner:The petitioner argued that the Order in Original was not served promptly and was only communicated after the petitioner approached the authorities. The respondent, however, maintained that the order was duly communicated to the petitioner at both business and residential addresses as per records, as evidenced by Annexure 11.3. Reconciliation of Accounts:The petitioner emphasized that the liability amount had been paid in full before the issuance of the show cause notice and the subsequent order. The petitioner alleged that despite the earlier payment, the order was passed without reconciling the accounts, leading to a dispute over the actual fulfillment of the liability.4. Issuance of Notice in Form GST DRC 13:An order of attachment of the petitioner's bank account was issued, leading to a second payment under protest by the petitioner. The petitioner contended that the same liability was discharged twice due to the department's failure to reconcile accounts and consider the earlier payment.5. Double Payment of Liability:The petitioner highlighted the payment made under protest after the issuance of Form GST DRC 13, reiterating the claim of discharging the liability twice. The petitioner sought a refund of the amount paid subsequently, emphasizing the need for a thorough review of the payments made.6. Alternative Remedy and Maintainability of Writ Petition:The respondents argued that the petitioner had an alternative remedy against the impugned order through appeal, questioning the delay in approaching the court. The court noted that the impugned order was appealable under the Finance Act, 1994, and deemed the writ petition not maintainable due to the availability of an alternative legal recourse.In conclusion, the court dismissed the writ petition, stating that the challenge to the order in original could be pursued through the proper appellate channels. The court refrained from making a determination on whether the petitioner had discharged the liability, leaving it open for the petitioner to pursue the appropriate legal remedies available.