Disposed

M/S Austees Hydro Power and Construction Company Pvt. Ltd. v. Union of India and Others

Himachal Pradesh HC25 Oct 2018CWP/1073/2018

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition emphasizing the availability of an alternative statutory appeal under Section 85 of the Finance Act, 1994. However, acknowledging the delay in appealing due to the writ's pendency, the Court directed the authorities to condone the delay if the petitioner appealed within two weeks, specifying that interim orders remain valid and pre-deposit rules apply.

What did the court decide?

Writ petition disposed of; direction to condone delay in filing appeal within two weeks; order to make pre-deposit on specific liabilities.

M/S Austees Hydro Power and Construction… — GST and Indirect Tax | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 1073 of 2018 Decided on 25.10.2018

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M/s Austees Hydro Power & Construction Company (P) Ltd.

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.…Petitioner. -Versus-

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Union of India and others … Respondents.

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………………………………………………………………………… Coram

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The Hon’ble Mr. Justice Surya Kant, Chief Justice The Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?¹

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For the petitioner : Mr. Ajay Vaidya, Advocate.

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For respondents : Mr. Rajesh Sharma, Assistant Solicitor General of India, for respondents No.1 and 2.

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Mr. Rajiv Jiwan, Advocate, with Mr. Prashant Sharma, Advocate, for respondent No.3.

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Surya Kant, Chief Justice (Oral).

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The petitioner-Company is aggrieved by the order dated 28^th March, 2018 (Annexure P-3) passed by Joint Commissioner, Central Goods & Services Tax Commissionerate, Shimla. Vide the said order, the demand of services tax amounting to `1,90,84,482/- has been confirmed and the demand of interest at the applicable rate on the above stated amount of services tax has also been confirmed.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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Similarly, the demand of penalty of 10,000/- under Section 77(1)(a) read with Section 142(8)(a) and 174(2) of Central Goods & Services Tax Act, 2017 has also been confirmed. Likewise, a further penalty of 1,90,84,482/- i.e., equivalent to services tax too has been levied.

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The respondents have filed their reply-affidavit justifying the impugned order and have taken a preliminary objection that the impugned order is appealable under Section 85 of the Finance Act, 1994. In fact, the forwarding letter attached with the impugned order itself recites that if either party is aggrieved of the impugned order, it may file an appeal within 60 days and “an appeal against this order shall lie before the Commissioner (Appeal) on payment of 7.5% of the duty demanded where duty or duty and penalty are in dispute or penalty, where penalty alone is in dispute.”

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In our considered view, once the petitioner has got efficacious alternative remedy of statutory appeal, the same ought to have been availed by it before invoking the writ jurisdiction of this Court.

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The writ petition is accordingly disposed of by relegating the petitioner to avail the alternative remedy of appeal under Section 85 of the Finance Act, 1994.

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Since during the pendency of this writ petition, the time

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limit to file the appeal has expired, it appears that the prayer of the

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petitioner for condonation of delay in filing the appeal deserves acceptance. Consequently, we direct the Appellate Authority that in case the petitioner files an appeal within a period of two weeks from today, the delay in filing the appeal may be condoned and the appeal may be decided on merit and in accordance with law. The interim order passed by this Court on 16.5.2018 shall continue to operate for a period of four weeks to enable the petitioner in the meanwhile to seek interim relief before the Appellate Forum.

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As regards to the condition of pre-deposit, it appears to us that it would meet the ends of justice, if the petitioner is asked to make such pre-deposit in respect of the liabilities other than the penalty equivalent to the amount of services tax. Consequently, the Appellate Authority shall, on making pre-deposit by the petitioner at the prescribed rate qua the services tax, interest or penalty of `10,0000/-, i.e., other than the penalty equivalent to the services tax, shall decide the appeal on merits.

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The petition stands disposed of in the above terms, so also pending miscellaneous application(s), if any.

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(Surya Kant) Chief Justice

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(Ajay Mohan Goel) Judge

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25^th October, 2018 (Guleria)

M/S Austees Hydro Power and Construction Company Pvt. Ltd. v. Union of India and Others

Case brief

What is this about?

What did the court decide?

M/S Austees Hydro Power and Construction Company Pvt. Ltd. v. Union of India and Others

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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