QUIPPO ENERGY LTD. Vs. UNION OF INDIA
HIGH COURT OF GUJARAT
Quippo Energy Ltd.
UNION OF INDIA
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AKIL KURESHI,J. -
(1.) The petitioner has challenged order-in-original dated 20.01.2016 passed by the Principal Commissioner of Service Tax, Ahmedabad, under which, he has confirmed the proposal in the show-cause notice and held that the petitioner-assessee is providing taxable service which can be classified under "Supply of tangible goods service" as defined in Section 65(105)(zzzzj) of the Finance Act, 1994 on the lease charges of Rs. 128.38 crores (rounded off) received by the petitioner. Consequently, the competent authority confirmed the service tax demand of Rs. 13.7 crores (rounded off) for the period between 16.05.2008 and 30.06.2012 with interest and penalties.
(2.) Admittedly, against this order-in-original, statutory appeal lies before the CESTAT. Admittedly, no such appeal has been filed by the petitioner. It is equally admitted that, against the order of CESTAT, a further tax appeal would be available to the High Court on a substantial question of law. In other words, despite availability of statutory appellate remedy, the petitioner has approached the High Court in this writ petition without first availing such alternative statutory appellate remedy. In this context, we, at the outset, asked the counsel for the petitioner to satisfy us on why we should allow the petitioner to abandon such appellate remedy and approach the High Court directly in a writ petition.
(3.) In response to our query, counsel for the petitioner contended that the petitioner has already paid value added tax on the lease amount and that, therefore, application of service tax would be automatically ousted. He further submitted that the Commercial Tax authorities have no jurisdiction to levy service tax and that, therefore, it would be open for the petitioner to approach the High Court directly in a writ petition in order to press the question of very jurisdiction of the authority. He lastly contended that, the important question of interpretation of constitutional provisions is involved in the petition and therefore also, the writ petition should be entertained ignoring availability of alternative remedy. In this context, counsel submitted that the petitioner has created a lease in a movable property and the title in the property never vests in the lesee. This important aspect of the matter was totally lost sight by the Principal Commissioner while passing impugned order.;
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