Shaji Joseph v. The Deputy Commissioner, Central Taxes And Central Excise

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 27TH DAY OF JUNE 2022 / 6TH ASHADHA, 1944 WP(C) NO. 18962 OF 2022 PETITIONER: SHAJI JOSEPH AGED 53 YEARS S/O. P. J. JOSEPH, SCHOOL OF INFORMATION AND INSTRUMENTATION TECHNOLOGY, NEAR OLD KSEB, MAIN ROAD, THALAYOLAPARAMBU, KOTTAYAM-686605. BY ADVS. K.P.PRADEEP HAREESH M.R. SANAND RAMAKRISHNAN T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS: 1 THE DEPUTY COMMISSIONER, CENTRAL TAXES AND CENTRAL EXCISE KOTTAYAM DIVISION, V. PUBLISHERS BUILDING, SREENIVASA IYER ROAD, KOTTAYAM- 686001. 2 THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE COCHIN COMMISSIONERATE, C. R. BUILDING, I. S. PRESS ROAD, COCHIN 682018. 3 THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, SOUTH BLOCK, NEW DELHI-110001. BY ADVS. SMT.PREETHA S. NAIR, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS SHYAMDEEP S.SHENOY, CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P (C) No.18962/2022 -2- J U D G M E N T The petitioner has approached this court challenging Ext.P2 order issued under the provisions of the Finance Act, 1994 and through which there is a demand for payment of service tax amounting to Rs.28,26,220/- along with an equal amount of penalty etc. Sri.Sanand Ramakrishnan, the learned counsel appearing for the petitioner states that Ext.P2 is liable to be interfered with in exercise of juri iction under Article 226 of the Constitution of India on two grounds. He points out that Ext.P2 order travels beyond Ext.P3 show cause notice and adjudicates demand for service tax in respect of periods not covered by a show cause notice. It is also submitted that the petitioner was not given any effective opportunity before Ext.P2 order was passed. It is also submitted that if the reply of the petitioner has been properly considered there would be no demand as is now raised in Ext.P2. It is submitted that despite furnishing of the documents required before the authorities concerned, they were not taken into consideration while Ext.P2 order was passed. It is also submitted that there was no reason for the Department to apply the extended period of limitation as provided for in the Finance Act, 1994. 2. The learned Standing Counsel appearing for the respondents would submit that the petitioner has an effective alternative remedy by way of appeal before the Commissioner (Appeals) under Section 85 of the Finance Act and there is no juri ictional ground or violation of principles of natural justice which would persuade this court to interfere with Ext.P2 order at this stage of the proceedings. It is submitted that the contention of the petitioner was that he was not afforded with an effective opportunity of hearing is absolutely incorrect and reference is made to

W.P (C) No.18962/2022 -3- paragraph 16 of Ext.P2 order would show that several opportunities were extended to the petitioner, but he failed to avail any of those opportunities. It is also pointed out that the contention of the learned counsel for the petitioner that the order travels beyond the period specified in the show cause notice is absolutely incorrect. It is submitted that the extended period of limitation has been correctly applied in the facts and circumstances of this case. It is submitted that all the material produced by the petitioner have been taken into account while passing Ext.P2. 3. Having heard the learned counsel for the petitioner and the learned counsel appearing for the respondents, I am of the opinion that there is merit in the contention taken by the learned counsel appearing for the respondents that there are no grounds made out for this court to interfere with Ext.P2 order in exercise of juri iction under Article 226 of the Constitution of India. The petitioner has an effective alternative remedy by way of appeal before the appellate authority. In order to enable the petitioner to avail the statutory remedy, it is ordered that if the petitioner files an appeal along with a stay petition against Ext.P2 within 15 days from today, the said stay petition shall be treated as one filed in time and till orders are passed on the stay petition, any demand pursuant to Ext.P2 shall not be enforced. Writ petition is disposed of as above. GOPINATH P. JUDGE AMG

W.P (C) No.18962/2022 -4- APPENDIX OF WP(C) 18962/2022 PETITIONER EXHIBITS Exhibit P1OF THE LETTER NO. GESCOM/AE/INV/GST/8/ 2020-CGST-DIV-KTYM-CMMRTE-THIRUVANANTHAPURAM DATED 10-09-2020 ISSUED BY THE SUPERINTENDENT, PREVENTIVE UNIT, KOTTAYAM DIVISION. Exhibit P1(a)OF THE COVERING LETTER DATED 04-11-2020 THROUGH WHICH THE DOCUMENTS ARE SUBMITTED AND IN WHICH THE ACKNOWLEDGMENT THEREON IS OBTAINED. Exhibit P1(b)OF THE COVERING LETTER DATED 06-11-2020 IN WHICH ACKNOWLEDGMENT FOR THE RECEIPT OF ADDITIONAL DOCUMENTS IS OBTAINED. Exhibit P2OF THE ORDER-IN-ORIGINAL NO.09/2022/ST DATED 22-03-2022 PASSED BY THE 1ST RESPONDENT. Exhibit P3OF THE ABOVE SAID SHOW CAUSE NOTICE NO.35/2020/ST DATED 23-12-2020 ISSUED BY THE 1ST RESPONDENT. Exhibit P4OF THE ABOVE SAID FRANCHISE AGREEMENT DATED 12-01-2019 WRITTEN IN THE E-STAMP CERTIFICATE NO. IN-CH15784170103304R (ISSUED ON 11-JAN-2019). Exhibit P5OF THE ABOVE SAID FRANCHISE AGREEMENT 11- 01-2019 WRITTEN IN THE E-STAMP CERTIFICATE NO. IN- DL28105127141629R (ISSUED ON 11-JAN-2019) .