Disposed

Bharat Hotels Limited v. the Commissioner Central Excise,Customs and Service Tax

Delhi HC18 Jan 2016W.P.(C)/6787/2015

Case brief

AI extract

What is this about?

The High Court dismissed a petition, directing CESTAT to hear the petitioner's appeal without demanding a 7.5% predeposit under Central Excise Act Section 35, effectively modifying a prior notice while the jurisdictional issue regarding service category remains pending.

What did the court decide?

The order dated 17.01.2016 was made absolute, directing CESTAT to hear the appeal without predeposit of 7.5%.

Bharat Hotels Limited Vs the Commissioner Central Excise,Customs… — Income Tax | Delhi HC (2016)

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IN THE HIGH COURT OF DELHI AT NEW DELHI 15. + W.P.(C) 6787/2015 & CM No.12385/2015 BHARAT HOTELS LIMITED ..... Petitioner Through: Mr Sanjeev Anand with Mr Anil Sood and Ms Luza Grover, Advocates.

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versus

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THE COMMISSIONER CENTRAL EXCISE,CUSTOMS AND SERVICE TAX ..... Respondent Through: Mr Rahul Kaushik, Senior Standing Counsel with Mr Bhavishya Sharma, Advocates.

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CORAM: JUSTICE S.MURALIDHAR JUSTICE VIBHU BAKHRU

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O R D E R % 18.01.2016

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Learned counsel for the Respondent sought time to file reply. Considering that notice was issued in this writ petition on 17^th July, 2015 itself and more than 5 months have elapsed since then, there is no justification in seeking further time to file a reply.

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This writ petition is directed against the order dated 30^th June, 2015 passed by the Customs, Excise and Service Tax Appellate Tribunal (‘CESTAT’) dismissing the Petitioner’s application for waiver of the predeposit under Section 35F of the Central Excise Act, 1944 (‘Act’) .

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W.P.(C) 6787/2015 Page 1 of 3

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The issue involved in the present petition has been succinctly encapsulated in the previous order dated 17^th July, 2015 passed by this Court, which reads as under:-

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“The learned counsel for the petitioner submits that the service provided by them is “Transportation of Passengers by Air Services”. However, the department insists that the service provided by the petitioner falls in the category of “Supply of Tangible Goods for use”. He further submits that whether the petitioner is right or the department is right is a matter which has to be decided and is pending adjudication. The fact of the matter is that it is either one of the two services that would apply. The petitioner has remitted an amount of Rs 1,04,96,924/- as service tax under the category of “Transportation of Passengers by Air Services”.

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The Tribunal has refused to give credit to the petitioner for this deposit under the provisions of Section 35 of the Central Excise Act, 1944 on the ground that the tax has been paid for a category different for which the department has raised the demand.

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The submission of the learned counsel for the petitioner is that it has to be decided as to which category is the relevant category.

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Be that as it may, in either eventuality, respondents ought to give the petitioner credit for the service tax amount of Rs.1,04,96,924/-. We feel that the petitioner has a prima facie case. As a result, we are issuing notice and directing that the petitioner need not deposit 7.5% in the category of “Supply of Tangible Goods for use” and that its appeal shall not be rejected by the Tribunal on the ground that the petitioner has not deposited the amount in the said category.

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The notice is returnable on 18.01.2016.”

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In the absence of any counter affidavit by the Respondent, the Court

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W.P.(C) 6787/2015 Page 2 of 3

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considers it appropriate to make absolute the order passed by this Court dated 17^th July, 2015. The impugned order passed by the CESTAT is, accordingly, modified by directing that the appeal of the Petitioner would be heard without requiring pre-deposit of 7.5% in the category of “Supply of Tangible Goods for use”. The Petitioner’s appeal now be heard on merits in accordance with law.

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The petition and the pending application are disposed of in the above

terms.

S.MURALIDHAR, J

VIBHU BAKHRU, J

JANUARY 18, 2016 MK

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Page 3 of 3

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W.P.(C) 6787/2015

Bharat Hotels Limited v. the Commissioner Central Excise,Customs and Service Tax

Case brief

What is this about?

What did the court decide?

Bharat Hotels Limited v. the Commissioner Central Excise,Customs and Service Tax

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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