2019 (8) TMI 493

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.... 21st December, 2016 in our writ jurisdiction. 3. In response, Mr. Nankani, learned Senior Counsel appearing in support of the petition points out that other Railway Corporations similarly constituted in the manner similar to the petitioner and involved in the same activity as the petitioner herein, notices issued by the Service Tax Authorities for recovery of service tax stood withdrawn. In particular our attention is invited to order dated 25th January, 2016 passed by the Commissioner of Service Tax, Delhi Commissionerate in respect of M/s. Bharuch Dahej Railway Co. Ltd. as annexed to the Additional Affidavit dated 6th September, 2018 filed by the petitioner. 4. In the above view, we enquired of Mr. Dwivedi, learned Counsel for the Revenue whether the respondent Revenue has accepted the order dated 25th January, 2016 passed by the Delhi Commissionerate on an identical activity as carried out by the petitioner as not being subject to Service Tax under the Act. We informed him that if the activity carried out by the petitioner is identical to M/s. Bharuch Dahej Railway Co. Ltd. and the Revenue has accepted the order dated 25th January, 2016, then there is no reason to treat the....

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....he order dated 25 March 2019 of the Tribunal in the case of Commissioner Service Tax, Delhi­III, New Delhi vs. Bharuch Dahej Railway Co. Ltd. [2019-­TIOL-­1175-­CESTAT-­DEL]. We note that the above order is a common order in respect of Bharuch Dahej Railway Co. Ltd. and Krishnapatnam Railway Co. dated 25 March 2019, which dismissed the Revenue's two appeals by following the tribunal's earlier decision in Mudra Port & Special Economic Zone Ltd. vs. CCE, Rajkot [2019-­TIOL­-1175­-CESTAT-­DEL]. The Tribunal, in its order dated 25 March 2019, while dismissing the Revenue's appeal recorded the fact that the decision of the Tribunal in the case of Mudra Port & Special Economic Zone Ltd. (supra) was now pending consideration in appeal before the Supreme Court on identical issues, after the Revenue's appeal was admitted. This dismissal of the two appeals of the Revenue, by order dated 25 March 2019, was in view of the fact that in the absence of the Apex Court granting stay to the decision of the Tribunal, the decision in Mudra Port & Special Economic Zone Ltd. (supra) continued to be binding. 3. In the light of the above facts, particul....

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....lable, as held by the Gujarat High Court in Darshan Boardlam Ltd. vs. Union of India [2013 (287) E.L.T. 401 (Guj.)]; (d) On merits, he submits that on the entire freight amount, tax has been discharged by the Railways and/or the Petitioner. By the impugned order the Revenue is now seeking to charge a part of the aforesaid amount as a consideration received by the Petitioner from the Railways for rendering of services. Thus this action would also require interference by the Court in its writ jurisdiction. 5. It is an undisputed position before us that the impugned order dated 21 December 2016 is appealable to the Tribunal under Section 129A of the Act. However, the case of the Petitioner is that on these facts, the Petitioner should not be relegated to the alternative remedy provided under the Act. It is true that availability of an alternative remedy would not by itself bar this Court from entering a writ petition in its writ jurisdiction under Article 226 of the Constitution of India. However, the exercise of this writ jurisdiction is discretionary and it is not exercised only because it can be exercised. Therefore, the Courts have refused to exercise discretion under Article 2....

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....17, keep the notice in the call book, to await the decision of the Supreme Court in the case Mudra Port & Special Economic Zone Ltd. (supra). Two things are very clear, one the Revenue has neither accepted the view of the Tribunal in the case of Mudra Port & Special Economic Zone Ltd. (supra) nor of the Tribunal in the case of Bharuch Dahej Railway Co. Ltd. (supra) and Krishnapatnam Railway Co. (supra), as it is in the process of filing an appeal. Secondly, the Apex Court found the issue debatable and has admitted the appeal. It is, therefore, a matter, which is still not finally concluded and, therefore, mere absence of a stay being granted in the earlier orders, would not justify this Court interfering with the impugned order dated 16 December 2016 of the Commissioner of Service Tax under the Finance Act, 1994. When the relief sought before us is something which could be sought before the Tribunal, then there is no reason for us to exercise our discretion to entertain the writ. It is not the case of the Petitioner that the impugned order is without jurisdiction. In this case, we find that the order has already been passed. There is no reason, at this stage, to set aside the order....