Mixed questions of facts and law ought to be filed before the first Appellate Authority and thereafter before Tribunal in Second Appeal: Madras HC [Read Order]

The Madras high court while dismissing the appeal held that the mixed questions of facts and law ought to be filed before the first Appellate Authority and thereafter before Tribunal in Second Appeal.

The assessee, BGR Energy Systems Limited filed aggrieved by the order passed by the Single Judge whereby the Writ Petitions of the Petitioner were dismissed on merits and the learned Single Judge was pleased to hold that the Assessee was liable to pay Service Tax on the Services availed by the Bank in relation to Indian Bank, Adyar, Chennai from the foreign parties for providing Performance Bank Guarantee in Iraq to the customer of the present Petitioner.
The division judge bench of Justice Vineet Kothari and justice M.S.Ramesh disposed of the Appeals with a liberty to the Appellant to withdraw the Writ Petition itself and move the concerned Appellate Authority.

The court observed that the Assessee ought not have invoked the Writ Jurisdiction straightway against the Assessment Order adjudicating the issue, which involves mixed questions of facts and law i.e., whether further Service Tax was to be levied upon the Assessee Company, even if the Indian Banker of the Assessee had already paid Service Tax on the Services availed by it from the foreign Banks for providing such Performance Bank Guarantee to the Customers of present Assessee in Iraq is said to have even realised that Service Tax from the Assessee.

“If a regular Appeal is filed before concerned Appellate Forum within six weeks from today, subject to compliance of the usual conditions for entertaining such Appeal, without raising any objection for the delay in filing the Appeal, it shall be entertained and decided on merits in accordance with law and thereafter, if the Appellant is aggrieved against the order passed by the learned first Appellate Authority, the Assessee may file the second Appeal before the learned Tribunal provided under the Act. Such Appellate Authorities will decide the Appeals in accordance with law, uninfluenced by any observations made in the order of the learned Single Judge impugned before us,” the court said.