Ms F M Enterprises Through Its Attorney Holder Md Razzaque Ansari vs. Union Of INDIA Through The Secretary And Commissioner GST Ministry Of Finance Deptt Of Revenue

Held

The Court held that the impugned Order in Original dated March 20, 2017, is an appealable order under the provisions of the Finance Act, 1994. The dispute regarding whether the petitioner was communicated the order earlier or not cannot be adjudicated by the High Court in its writ jurisdiction, especially when Annexure-11 indicates that the order was delivered to the petitioner's business and residential addresses. If the petitioner disputes the delivery, they must demonstrate this before the appropriate authority. Consequently, the Court was not inclined to entertain the writ petition against the Order in Original and dismissed it as not maintainable. The Court clarified that it made no observation on whether the petitioner had actually discharged the liability. The petitioner remains at liberty to avail their remedy as permissible under law.

Facts

The petitioner, M/s F.M. Enterprises, challenged an Order in Original dated March 20, 2017, which confirmed a service tax liability. The petitioner claimed this order was never served and was only communicated on November 5, 2020. They asserted that the entire liability of Rs. 9,28,371/- was discharged in April 2014, prior to the show-cause notice and the Order in Original. Despite this, the department did not reconcile accounts. Subsequently, a notice in Form GST DRC-13 was issued to the petitioner's banker for payment of the same liability, leading the petitioner to pay Rs. 9,28,371/- again under protest on October 8, 2020. The petitioner sought quashing of the Order in Original and the GST DRC-13 notice, refund of the amount paid under protest, or reconciliation of accounts.

Key Issues

1. Whether the Order in Original dated March 20, 2017, was duly communicated to the petitioner, and if not, can this Court entertain the writ petition against it given the alternative remedy? (Question of mixed law and fact, concerning principles of natural justice and availability of alternative remedy). 2. Whether the petitioner has discharged the service tax liability prior to the Order in Original, and if so, whether the subsequent demand and payment under protest are valid? (Question of mixed law and fact, concerning factual discharge of liability and procedural fairness). Petitioner's arguments: The Order in Original was not served until November 5, 2020, and the entire liability was paid in April 2014. The department failed to reconcile accounts, leading to a duplicate demand and payment under protest. They relied on the principle that a taxpayer should not be made to pay the same liability twice due to departmental inaction. Respondents' arguments: The petitioner had an alternative remedy against the Order in Original. Annexure-11 suggests the order was duly communicated. The petitioner failed to avail the alternative remedy within the period of limitation and approached the High Court belatedly. They relied on the fact that the Order in Original is appealable under the Finance Act, 1994.