By TIOL News Service

MUMBAI, SEPT 26, 2016: ORDERS were passed by the CCE, Raigad confirming the service tax demands for the period June 2007 to March 2011 and April 2011 to March 2012 on the 'renting of immovable property service'.

The applications for Stay and the appeals filed by the assessee were dismissed by the CESTAT by its order dated 04.08.2014. The Bench held thus -

ST - It is a settled position that proceedings seeking remedy cannot be sought before two forums simultaneously - against levy on Renting of Immovable Property service appellant had challenged its vires before the Bombay High Court and the Court had passed interim directions that pending decision Revenue shall not take coercive steps for recovery of ST - thereafter an amendment was moved seeking direction as to whether the transaction would attract ST liability or VAT liability and the interim relief granted earlier was continued by the High Court - subsequently the adjudicating authority passed orders confirming the demands - however, after passing of the impugned orders, neither the appellant nor Revenue has sought any directions and the matter is still pending in High Court - in this view of the matter the appeals are dismissed and stay petitions are held to be not maintainable - appellant at liberty to move application for restoration: CESTAT [para 4, 5]

We reported the same as 2014-TIOL-1671-CESTAT-MUM.

The assessee had, therefore, filed appeal before the Bombay High Court.

The High Court took a view that the Tribunal erred in law in dismissing the appeal as not maintainable.

Inasmuch as the High Court observed thus -

++ A statutory appeal or a statutory right to appeal was availed of by the appellant/assessee to challenge the Orders-in-Original. Such an appeal was maintainable in law.

++ Once it was so maintainable under the scheme of the Central Excise Act, 1944, which also applies to the levy, imposition and assessment of service tax so also its recovery, then, the Tribunal was bound to decide the appeal on merits.

++ It could not have been dismissed as not maintainable only because the petitioner in the writ petition and the appellant before the Tribunal were pursuing both remedies.

++ The statutory appeal of the assessee, in the absence of any restraint order by the High Court, was maintainable and could have been decided on merits and in accordance with law.

++ If there was no restraint against passing of an adjudication order, surely, against such an adjudication order all statutory remedies, including an appeal are available. That is precisely what the appellant/assessee has done and the appeal could not have been dismissed as not maintainable.

The appeal was allowed by quashing and setting aside the impugned Order of the CESTAT.

The Tribunal was directed to decide the appeal on merits and in accordance with law.

(See 2016-TIOL-2251-HC-MUM-ST)