W.A.No.2128 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.A.No.2128 of 2022 and
C.M.P.No.15819 of 2022
Tanjore Power Ltd.,
(Formerly known as Lanco Tanjore Power Company Ltd., and
earlier known as Aban Power Company Ltd.,)
Rep. by its Chief Financial Officer S Kathir Kamanathan
No.25, GN Chetty Road,
T.Nagar, Chennai- 600 017. ... Appellant
-vs-
1. Principal Commissioner
Office of the Principal Commissioner of CGST and Central
Excise,
Chennai North Commissionerate,
No.26/1, Mahatma Gandhi Road,
Chennai- 600 034.
2. Superintendent of Central Excise,
Service Tax Division XVIII,
Service Tax Commissionerate Delhi IV,
CR Building I P Estate,
New Delhi 110002. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside the order
passed by the learned Judge in W.P.No.11593 of 2022 dated 07.06.2022.
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https://www.mhc.tn.gov.in/judis
W.A.No.2128 of 2022
For Appellant : Mr. Joseph Prabakar
For Respondent : Mr.A.P.Srinivas
Senior Standing Counsel
***
JUDGMENT
S.VAIDYANATHAN.,J and C.SARAVANAN.,J This Writ Appeal is filed against the order passed by the learned Judge in W.P.No.11593 of 2022 dated 07.06.2022.
2. The Appellant/Writ Petitioner filed the Writ Petition in W.P.No.11593 of 2022, challenging the order-in-original dated 07.02.2022, passed in terms of Finance Act, 1994 under which service tax is levied.
3. Earlier, the Appellant/Petitioner has approached this Court by way of Writ Petition in W.P.No.39082 of 2015, challenging the Show Cause Notice issued prior to the passing of the order impugned in W.P.No.11593 of 2022 and the same came to be dismissed by this Court on 07.03.2006 which was dismissed against which W.A.No.709 of 2016 was filed, which was also dismissed on 23.11.2017.
4. The learned counsel appearing for the Appellant submitted that the Appellant/Writ Petitioner engaged in the generation of electricity and set up a power 2/6 https://www.mhc.tn.gov.in/judis W.A.No.2128 of 2022 plant near Tanjavur and entered into an agreement with General Electric Inc., USA for maintenance of the plant. They have to pay service tax on reverse basis on quarterly basis in US dollars which will be converted in the Indian currency. He further submitted that the Appellant have paid the entire amount demanded with respect to Service Tax for the period in question and without considering the same, the service tax have been foisted on the Appellant by the Respondent without any jurisdiction and the learned Single Judge also without taking note of said fact has dismissed the Writ Petition filed by the Appellant. That apart, pointing upon the paragraph 6 in page no.4 of the order impugned in the Writ Petition,the learned counsel for the Appellant submitted that the Appellant has already paid the service tax.
5. The learned standing counsel appearing for the Respondents submitted that the learned Single Judge rightly taking note of all factual and legal issues has dismissed the Writ Petition and therefore the same need not be interfered with.
6. Heard both sides. Perused the records.
7. Paragraph 13 of the order impugned in the Writ Petition reads as follows:
"The major argument of the assessee for non payment of service tax is that the same was paid by the Indian branch of their service provider viz. M/s. General Electric International Inc. situated at Gurgaon. However, they have not submitted any documentary evidences 3/6 https://www.mhc.tn.gov.in/judis W.A.No.2128 of 2022 to prove their stand. Contrarily, they have stated that it is the outlook of the Department to verify the varacity of service tax payment from their counterparts at the other end. However, it must be kept in mind that the liability to pay service tax has been cast only upon the assessee and not upon the service provider as already explained in the pre-paras. That being so, it is the bounden duty of the assessee to pay the service tax that was legitimately required to have been paid by them. They cannot be resolved from the legitimate liability to pay tax by saying that their liability had been discharged by the service provider. Even assuming that the service tax had been so paid at the other end the only recourse to set that right would be by way of a refund by the other party. Such payment even if it had paid paid by the service provider cannot absolve the liability cast upon the assessee, this notwithstanding the fact that the service provider is not the Indian branch of the service provider M/s. General Electric International Inc., USA. The claim of the assessee that the Gurgaon branch is the actual service providor does not hold merit in view of the undisputed fact that the agreement for maintenance had been made only with M/s General Electric International Inc., USA and admittedly all payments had also been made by the assessee only to M/s. General Electric Inc., USA in US dollars. That being so, they cannot suddenly claim that the service provider is the Indian branch and not the foreign company."
8. From the above, it is clear that the Appellant has not produced any document to prove their stand and hence are not inclined to accept the contention of the Appellant as there is no materials as on date in support of the contentions of the Appellant. Since the petitioner has got got alternate remedy of depositing 7.5% of the amount demanded, we are not inclined to entertain this Appeal and the Appeal is devoid of merits.
9. In view of the same, this Writ Appeal stands dismissed giving liberty to the Appellant to agitate before the Appellate authority by filing the Appeal and the Appellant authority shall decide the issue within a period of three months from the date of receipt of filing of the Appeal, provided the same is filed within 30 days period. No costs. Consequently, connected 4/6 https://www.mhc.tn.gov.in/judis W.A.No.2128 of 2022 Miscellaneous Petition is closed.
[S.V.N., J.,] [C.S.N., J]
19.09.2022
Index: Yes / No
Internet: Yes / No
arr
To
1. Principal Commissioner
Office of the Principal Commissioner of CGST and Central Excise, Chennai North Commissionerate, No.26/1, Mahatma Gandhi Road, Chennai- 600 034.
2. Superintendent of Central Excise, Service Tax Division XVIII, Service Tax Commissionerate Delhi IV, CR Building I P Estate, New Delhi 110002.
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and C.SARAVANAN,J.
arr W.A.No.2128 of 2022 19.09.2022 6/6 https://www.mhc.tn.gov.in/judis