Rashil Anilbhai Mehta vs Assistant Commissioner of Service Tax and Others

Shah, J.—Rule. Mr. Y.N. Ravani, learned advocate waives the service of notice of rule on behalf of the respondents. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present special civil application is taken up for final hearing today.

By way of this petition under article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ order and/or direction to quash and set aside the order-in-original dated July 17, 2009 passed by respondent No. 1 as well as the, impugned order dated July 13, 2010 passed by respondent No. 2 in order-in-appeal confirming the demand of service tax, interest and penalty upon the petitioner under the provisions of the Service Tax Act introduced in the Finance Act, 1994.

Today when the present special civil application is taken up for final hearing, Mr. Ankit Talsania, learned advocate appearing on behalf of the petitioner, has submitted that as such the order-in-original has been passed with respect to the service tax which the petitioner had already paid within stipulated time. It is submitted that unfortunately the same could not be pointed out by the petitioner before the first adjudicating authority. He has relied upon number of documents which are produced before this court in support of his submission that as such the petitioner had already paid service tax within the stipulated time for which the order-in-original has been passed. Therefore, it is requested to allow the present special civil application.

Mr. Y.N. Ravani, learned advocate appearing on behalf of the respondents has submitted that as such the documents which are now produced on record before this court in support of the case of the petitioner that the petitioner had already paid the amount of service tax for which order-in-original is passed, may not be considered, as the same are produced for the first time before this court. In the alternative, it is submitted that in that the matter may be remanded to the adjudicating authority to consider the show-cause notice afresh reserving the liberty in favour of the petitioner to produce the documents which the petitioner has produced before this court in support of its case that the petitioner had already paid service tax for which order-in-original has been passed now.

Heard Mr. Ankit Talsania, learned advocate appearing on behalf of the petitioner and Mr. Y.N. Ravani, learned advocate appearing on behalf of the respondents.

At the outset, it is required to be noted that it is the case on behalf of the petitioner that as such the petitioner had already paid the service tax within stipulated time for which the order-in-original has been passed. It is the case on behalf of the petitioner that the petitioner could not point out the number of documents before the first adjudicating authority which the petitioner has produced before this court. However, considering the fact that the documents which are produced on record before this court and now which are relied upon, were not produced before the adjudicating authority, we are of the opinion that the matter be remanded to the adjudicating authority to consider the show-cause notice afresh and after giving opportunity to the petitioner to produce on record relevant documents to prove that in fact the petitioner has already paid service tax and therefore nothing is due and payable by the petitioner. In view of the above, the impugned order-in-original dated July 17, 2009 passed by respondent No. 1 as well as the impugned order dated July 13, 2010 passed by respondent No. 2 in order-in-appeal are hereby quashed and set aside and the matter is remanded to the adjudicating authority to consider the show-cause notice/matter afresh in accordance with law and on merits. It will be open for the petitioner to submit the documents which are produced by the petitioner in the present petition in support of his case that service tax has already been paid by the petitioner within the stipulated time and nothing is due and payable by the petitioner, within a period of six weeks from today along with the copy of the present order and thereafter the adjudicating authority to pass appropriate order afresh in accordance with law and on merits, considering the evidences that may be produced by the petitioner. Present special civil application is accordingly allowed. Rule is made absolute to the aforesaid extent. No costs.