A Stay Story
THE Commissioner had confirmed a Service Tax demand of over Rs. 34 crores on certain alleged EPC projects for a State Government in an order dated 21.09.2011. The assessee filed a Stay application and sought waiver of pre-deposit. The CESTAT by an order dated 10.07.2013 2013-TIOL-1779-CESTAT-BANG, ordered deposit of over Rs. 30 crores and interest thereon.
The assessee filed a writ petition in the High Court. The interesting question before the High Court was whether the order of pre-deposit was an appealable order or whether writ was a remedy. The High Court held that it was an appealable order and rejected the writ petition. 2013-TIOL-997-HC-AP-ST.
And the assessee filed an appeal against the Tribunal's pre-deposit order. In a landmark order, the High Court observed that indiscriminate denial of the power of waiver would result in a situation where an aggrieved party would be indirectly told "pay or perish" . But strangely, the High Court ordered pre-deposit of about Rs. 18 crores. 2014-TIOL-137-HC-AP-ST. Please also see Service Tax - Appeal - Pre-deposit - Pay or Perish? in DDT 2285 03.02.2014
The perseverant assessee approached the Supreme Court. The Apex Court initially ordered that no coercive steps should be taken () but later allowed the assessee to withdraw the SLP and go back to the High Court with a review petition.
The assessee approached the High Court with a review petition. In an order dated 12.06.2014, the High Court remanded the matter to the Tribunal for the exclusive purpose of paving the way for the assessee to urge the ground of their financial weakness, or inability, before the Tribunal. and ( 28.07.2014)
So, the assessee was back to where it all started. This time around the Tribunal observed that it is necessary for the appellant to ensure that if not the full tax, at least a portion of the tax is paid for hearing the appeal. Appellants cannot expect the Government to stand in a queue along with other creditors for realization of tax when the assessee is a going concern and continues to be a taxpayer. The Tribunal ordered deposit of Rs. 10 crores.
Now, the assessee went straight to the Supreme Court. The Supreme Court on 05.12.2014, directed the assessee to deposit an amount of Rs. 2 crore before 14.12.2014 and on payment of this amount, the assessee will also be heard by the Larger Bench sitting at Bangalore.
The Larger Bench: In another case reported by us in the Supreme Court on 15.09.2014 directed that all similar cases should be heard by a Larger Bench of the Tribunal headed by the President, so that a uniform order is passed. [At last, some light at end of the... canal - DDT 2450 07.10.2014]
The Larger Bench of the Tribunal is all set to have its sitting in Bangalore from 15th December 2014.
In the last 17 months, this assessee was before the CESTAT twice, the High Court twice and the Supreme Court twice - perseverance pays.