Judgment
2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 3RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 WA NO. 639 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.30147 OF 2022 OF HIGH COURT OF KERALA APPELLANT/PETITIONER ASIANET DIGITAL NETWORK PRIVATE LTD.
AGED 53 YEARS 2A, 2ND FLOOR, LEELA INFOPARK, TECHNOPARK, KARYAVATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS ASSISTANT VICE PRESIDENT (F&A) MR. RAJESH.
V .S., PIN - 695581 BY ADVS.
KARTHIK S. NAIR PRABHAKARAN P.M.
RESPONDENTS/RESPONDENTS 1 UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI, PIN - 110001 2 PRINCIPAL ADDITIONAL DIRECTOR GENERAL DIRECTORATE GENERAL OF GST INTELLIGENCE , KOCHI ZONAL UNIT, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR P.O, KOCHI, PIN - 682017 3 COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE GST BHAVAN, PRESS CLUB ROAD THIRUVANANTHAPURAM, PIN - 695001 BY ADV P.R SREEJITH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2024 ALONG WITH W.A. NO.649/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.639 and 649 of 2024 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 3RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 WA NO. 649 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.3611 OF 2024 OF HIGH COURT OF KERALA APPELLANT/PETITIONER ASIANET DIGITAL NETWORK PRIVATE LTDREPRESENTED BY ITS ASSISTANT VICE PRESIDENT (F&A) MR.
RAJESH. V S 2A, 2ND FLOOR, LEELA INFOPARK, TECHNOPARK, KARYAVATTOM, THIRUVANANTHAPURAM, PIN - 695581 BY ADVS.
KARTHIK S. NAIR PRABHAKARAN P.M.
RESPONDENTS/RESPONDENTS 1 UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI, PIN - 110001 2 ADDITIONAL DIRECTOR GENERAL , DIRECTORATE GENERAL OF GST INTELLIGENCE, THIRUVANANTHAPURAM REGIONAL UNIT, T.C. NO. 14/3646/1, KESAVADASAPURAM,PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004 3 ADDITIONAL COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, THIRUVANANTHAPURAM COMMISSIONERATE, GST BHAVAN, PRESS CLUB ROAD,THIRUVANANTHAPURAM, PIN – 695001
W.A.Nos.639 and 649 of 2024 3 4 COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, THIRUVANANTHAPURAM COMMISSIONERATE, GST BHAVAN, PRESS CLUB ROAD,THIRUVANANTHAPURAM, PIN - 695001 BY ADV P.R SREEJITH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2024 ALONG WITH W.A. NO.639 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.639 and 649 of 2024 4
J U D G M E N T ============
Dr. A.K.Jayasankaran Nambiar, J.
Both these writ appeals impugn the common judgment of a learned Single Judge in W.P(C) Nos. 30147 of 2022 and 3611 of 2024. In as much as the learned Single Judge has in the impugned judgment dealt with the facts in extenso, we deem it unnecessary to reiterate them here.
2. We find that these appeals can be disposed, at the admission stage, on a limited point of maintainability. The writ petitions impugned show cause notices that were issued by the authorities under the Finance Act, 1994 as amended in relation to service tax. The show cause notices were impugned variously on grounds, inter alia, of lack of jurisdiction in the authorities to issue show cause notices, on the aspect of limitation, and on merits, in as much as it is the specific case of the writ petitioner that the levy of service tax would not
W.A.Nos.639 and 649 of 2024 5 apply to them in their capacity as providers of cable television services, especially in relation to the amounts collected from local cable operators, through whom they had been servicing distant customers of their digital cable television services.
3. The learned Single Judge, after dealing with the contentions of the learned counsel on either side, rejected the submission that the show cause notice was issued by a person without jurisdiction, and thereafter proceeded to dismiss the writ petitions by relegating the appellant to the statutory remedy of replying to the show cause notices and thereafter getting the matter adjudicated by the statutory authirty concerned.
4. Before us, the learned Senior Counsel Sri.Lakshmi Kumaran V.A. Points out that there are factual errors in the impugned judgment of the learned Single Judge, and further that the learned Single Judge has failed to consider the plethora of judgments, including judgments of the Supreme Court, which deal with the particular circumstances under which a High Court can interfere with show cause notices under Article 226 of the Constitution of India.
W.A.Nos.639 and 649 of 2024 6 5. While we have no doubt in our minds with regard to the exceptional circumstances under which an alternate remedy under a statute is not seen as a bar to the exercise of jurisdiction under Article 226 of the Constitution, we are of the view that on the facts of the instant case, where the challenge is to a show cause notice that is ostensibly issued within the period of limitation prescribed under the statute, and there has yet to be an adjudication on facts, it would not be proper for this Court to intervene under Article 226 of the Constitution of India. It is for the appellant herein to appraise the adjudicating authority of all its objections, including the objections with regard to jurisdiction and limitation, so that there is a consideration of those objections by the adjudicating authority at first instance. The invocation of the juridiction of this court under Art.226 of the Constitution would ideally be only thereafter since the jurisdiction is essentially one of judicial review of the decision of a primary authority.
6. Thus, we dismiss these appeals by confirming the judgment of the learned Single Judge and relegating the appellant herein to the adjudicating authority before whom he
W.A.Nos.639 and 649 of 2024 7 can agitate all issues, including the aspect of jurisdiction and limitation. We make it clear that the adjudicating authority shall independently consider all the objections of the appellant, including those pertaining to jurisdiction and limitation, untramelled by the observations of the learned single judge in the judgment impugned in these appeals.
The writ appeals are disposed as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/- SYAM KUMAR V.M.
JUDGE smm