DILEEP KUMAR V.S. Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, who was assessed to service tax by Ext. P11 order of the Joint Commissioner of Central Excise and Customs, Cochin, has preferred an appeal before the 2nd respondent, Appellate authority. By Ext. P13 order, the 2nd respondent rejected the appeal and upheld Ext. P11 order of the adjudicating authority. In the writ petition, Ext. P13 order of the Appellate authority is challenged. It is the contention of the petitioner that both the adjudicating authority and the appellate authority have not expressly considered the issue of jurisdiction that was directed to be considered by this Court in Ext. P9 judgment. It is also the case of the petitioner that the appellate authority in Ext. P13 order has not considered the plea of limitation that was raised by the petitioner. I have heard Sri Vinod Madhavan, the learned counsel appearing for the petitioner as also Sri Saiby Jose Kidangoor, the learned Standing counsel appearing for the respondents.

(2.) On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that against Ext. P13 order of the 2nd respondent, the petitioner has an effective alternate remedy by way of an appeal before the Customs Excise and Service Tax Appellate Tribunal. No doubt, the learned counsel for the petitioner would point out that the filing of an appeal before the Tribunal necessitates a payment of 10% of the tax confirmed against the petitioner by Ext. P13 order, as a precondition for maintaining the appeal before the Tribunal. I find, however, that the said condition is not so onerous as would deprive the petitioner of an effective right of appeal against Ext. P13 order. This is more so because, when compared to the erstwhile provisions under the Finance Act, 1994, as amended, governing service tax, the present requirement of depositing only 10% of the tax amounts confirmed against the petitioner, as a condition for maintaining the appeal, is fairly reasonable and imposes a lighter burden on an assessee. Thus, keeping open all the contentions of the petitioner on merits, I relegate the petitioner to the remedy of filing an appeal against Ext. P13 order of the 2nd respondent. The present writ petition, in its challenge against Ext. P13 order, is hence dismissed as not maintainable.