Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 29TH DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 WP(C) NO. 23595 OF 2023 PETITIONER:
KERALA DENTAL COUNCIL TC.27/741(3), AMBALATHUMUKKU, VANCHIYOOR P.O, THIRUVANANTHAPURAM, KERALA REPRESENTED BY ITS REGISTRAR, PIN – 695 035.
BY ADVS.
ANIL D. NAIR TELMA RAJU AADITYA NAIR RESPONDENTS:
1 DEPUTY DIRECTOR DIRECTORATE GENERAL OF GST INTELLIGENCE, OFFICE OF THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL KOCHI ZONAL UNIT, CENTRAL EXCISE BHAVAN KATHRIKADAVU, KALOOR P.O, KOCHI, PIN – 682 017.
2 ASSISTANT COMMISSIONER OFFICE OF THE ASSISTANT COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, THIRUVANANTHAPURAM NORTH DIVISION, P.O. BOX NO.13, GST BHAVAN PRESS CLUB ROAD, THIRUVANANTHAPURAM, PIN – 695 001.
BY ADV SREELAL N.WARRIER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.09.2023, ALONG WITH W.P. © NO. 26055/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 23595 & 26055 of 2023 : 2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 29TH DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 WP(C) NO. 26055 OF 2023 PETITIONER:
KERALA STATE PHARMACY COUNCIL MNVG ADIYODI MEMORIAL PHARMACY BHAVAN, RED CROSS ROAD, NEAR GOVERNMENT HOSPITAL JUNCTION, VANCHIYOOR P.O, THIRUVANANTHAPURAM, KERALA -695 035, REPRESENTED BY ITS REGISTRAR.
BY ADVS.
ANIL D. NAIR TELMA RAJU AADITYA NAIR RESPONDENTS:
1 DEPUTY DIRECTOR DIRECTORATE GENERAL OF GST INTELLIGENCE, OFFICE OF THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL KOCHI ZONAL UNIT, CENTRAL EXCISE BHAVAN KATHRIKADAVU, KALOOR P.O, KOCHI-682 017.
2 ASSISTANT COMMISSIONER OFFICE OF THE ASSISTANT COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, THIRUVANANTHAPURAM P.O. BOX NO.13, GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695 001.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.09.2023, ALONG WITH WP(C).23595/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 23595 & 26055 of 2023 : 3 :
Dated this the 29th day of September, 2023.
JUDGMENT The petitioners are the Kerala Dental Council and the Kerala State Pharmacy Council respectively, who are said to be statutory bodies. The petitioners have filed the instant writ petitions impugning Exhibit P6 orders-in-original dated 30.03.2023 issued by the second respondent imposing service tax, interest and penalty.
2. The learned counsel for the petitioners submits that he is not addressing arguments on merits with respect to Exhibit P6 orders-in- original, but only on the manner in which the orders have been passed. Earlier, before the GST regime, the petitioners were assessed for service tax. However, the said service tax was dropped by the adjudicating authority holding that activity of the petitioners were exempted from payment of service tax under Article 243G/W of the Constitution of India and also their activities come within the ambit of Notification No.25/2012. In the impugned order, it is stated that the said orders exempting the petitioners from payment of service tax were reviewed by order dated 04.05.2023 and the Department has decided to file appeals against the orders exempting the petitioners from payment of the service tax. The learned counsel for the petitioners submits that in the impugned orders-in-original dated
W.P.(C) No. 23595 & 26055 of 2023 : 4 :
30.03.2023, the order on review dated 04.05.2023 has been taken note of.
3. Sri. Sreelal N. Warrier, the learned counsel for the respondents, submits that it is a mistake which has crept in and there was no manipulation; but, he has advanced a contention that the date ‘01.06.2023’ is written in the impugned order itself and by mistake printed dates were not corrected. It is also submitted that if the order in review was passed after the passing of Exhibit P6 orders dated 30.03.2023, that order could not have found a place therein.
4. Be that as it may, since there is some suspicion regarding the order dated 04.05.2023 that has been taken into consideration in the impugned orders, it would be appropriate to set aside those orders. Therefore, I remit the matter back to the second respondent to pass fresh orders in accordance with law, keeping in view the procedural formalities and propriety. Thus, the present writ petitions are allowed and the impugned Exhibit P6 orders are set aside. Before passing the orders as directed above, the petitioners shall also be heard.
sd/- DINESH KUMAR SINGH, JUDGE.
Rv
W.P.(C) No. 23595 & 26055 of 2023 : 5 :
APPENDIX OF WP(C) 23595/2023 PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.03/2022- 23 DATED 18.4.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE REPLY DATED 18.7.2022 SUBMITTED BY THE PETITIONER Exhibit P3 TRUE COPY OF THE ORDER DATED 7.2.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P4 TRUE COPY OF SHOW CAUSE NOTICE NO.75/2022-23 DATED 23.11.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P5 TRUE COPY OF THE REPLY DATED 27.3.2023 SUBMITTED BY THE PETITIONER Exhibit P6 TRUE COPY OF THE ORDER DATED 30.3.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE APPEAL FILED AGAINST EXHIBIT P3 PENDING BEFORE THE COMMISSIONER (APPEALS) RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge.
rv
W.P.(C) No. 23595 & 26055 of 2023 : 6 :
APPENDIX OF WP(C) 26055/2023 PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.04/2022- 23 DATED 18.4.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE REPLY DATED 18.7.2022 SUBMITTED BY THE PETITIONER TO THE SCN.04/2022-2023 Exhibit P3 TRUE COPY OF THE ORDER DATED 10.2.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P4 TRUE COPY OF SHOW CAUSE NOTICE NO.76/2022-23 DATED 23.11.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P5 TRUE COPY OF THE REPLY DATED 21.3.2023 SUBMITTED BY THE PETITIONER TO THE SCN.76/2022-2023.
Exhibit P6 TRUE COPY OF THE ORDER DATED 30.3.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE APPEAL FILED AGAINST EXHIBIT P3 PENDING BEFORE THE COMMISSIONER (APPEALS) DATED 17.05.2023 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge.
rv