By TIOL News Service

CHENNAI, JAN 23, 2018: THE petitioner has challenged an order dated 27.4.2017 passed by the CCE, by which, the activity done by the petitioner namely erection, maintenance and repairs of street lights for the use of Municipal Corporation was held to attract levy of service tax.

The Petitioner submits that though they have an appeal remedy before the CESTAT, for the following three reasons, they may not be directed to avail the same.

Firstly, they had placed reliance on the decision of the Mumbai Tribunal in the case of  Enam Service Private Limited  =  2014-TIOL-2205-CESTAT-MUM, but the same was not followed by the Commissioner on the ground that the Department filed an appeal before the Supreme Court.

Secondly, in the petitioner's own case, the Tribunal passed an order dated 10.1.2017 and granted partial relief, though such an order was not placed before the Commissioner.

Thirdly, because of the financial difficulty, the petitioner will not be able to pay the mandatory pre-deposit of 7.5% of the duty demanded.

The High Court observed that, in its considered view, all the three grounds could not be a reason for bypassing the appeal remedy available under the Statute.

It was held -

(a) The inability to pay the mandatory pre-deposit cannot be a ground to entertain a writ petition.

(b) With regard to the decision in Enam Service Private Limited, prima facie, the Supreme Court was satisfied that question of law was involved and therefore, special leave petitions were entertained and were converted into civil appeals.

(c) In the assessee's own case, the Tribunal recently rendered a decision, which, according to the petitioner, granted a partial relief. However, the order was not placed before the Commissioner. In any event, this can be done by the petitioner by filing an appeal as against the impugned order.

The Writ Petition was held to be not maintainable and, therefore, dismissed.

(See 2018-TIOL-136-HC-MAD-ST)