A.G. Gokuldas vs. The Assistant Commissioner

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNE AY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942 WP(C).No.20892 OF 2020(J) PETITIONER/S: A.G. GOKULDAS, AGED 77 YEARS S/O. LATE GOPIDAS, PROPRIETOR, M/S. DEVI CONSTRUCTIONS, 12/404, METRO LODGE, T.B ROAD, KOTTAYAM, PIN 686 001. BY ADV. SRI.R.RAMADAS RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER, CENTRAL G.S.T AND CENTRAL EXCISE, KOTTAYAM DIVISION, V. PUBLISHERS BUILDING, SREENIVASA IYER ROAD, KOTTAYAM, PIN 686 001. 2 THE SUPERINTENDENT, OFFICE OF THE SUPERINTENDENT OF CENTRAL GST AND CENTRAL EXCISE, KOTTAYAM -1 RANGE, V. PUBLISHERS BUILDING, SREENIVASA IYEER ROAD, KOTTAYAM, PIN 686

WP(C).No.20892 OF 2020(J) 2 JUDGMENT Against Exts.P3 and P4 Appellate orders under the Finance Act 1994 as amended in its application to the Service Tax, the petitioner has preferred Exts.P7 and P8 appeal before the Customs, Excise, Service Tax, Appellate Tribunal. In the writ petition it is the case of the petitioner that notwithstanding the fact that appeals were preferred before the CESTAT, after the payment of the required fees and deposits for maintaining the said appeals before the said Tribunal, Ext.P10 demand notice was issued to the petitioner seeking a recovery of the amount confirmed against the petitioner by Exts.P3 and P4 first Appellate orders. The learned Standing Counsel for the respondent would submit that Ext.P10 demand notice was issued under the mistaken assumption that the petitioner had not preferred any appeals against Exts.P3 and P4 Appellate orders and the respondents were not aware of the fact that the petitioner had filed appeals against the First Appellate orders. Taking note of the said submission of the learned Standing Counsel for the respondents, and finding that any rate during the pendency of the appeals before the CESTAT, the respondents cannot pursue a recovery action against the petitioner for recovery of amounts confirmed by the First Appellate Authority’s order, I dispose the writ petition by quashing Ext.P10 demand notice and directing the respondent not to proceed with the recovery proceedings for recovery of amounts confirmed against the petitioner by Exts.P3 and P4 orders, pending disposal of Exts.P7 and P8 appeals by the Appellate Tribunal. A.K.JAYASANKARAN NAMBIAR JUDGE SJ

WP(C).No.20892 OF 2020(J) 3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 10- 11-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2OF THE ASSESSMENT ORDER DATED 17- 11-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3OF THE ORDER DATED 18-12-2019 IN THE APPEAL NO. 715/2019 PASSED BY THE COMMISSIONER (APPEALS) EXHIBIT P4OF THE ORDER DATED 18-12-2019 IN THE APPEAL NO. 716/2019 PASSED BY THE COMMISSIONER (APPEALS) EXHIBIT P5OF THE SHOW CAUSE NOTICE NO. 13/2019 DATED 01-03-2019 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6OF THE REPLY SUBMITTED BY THE PETITIONER ON MARCH, 2019 BEFORE THE 1ST RESPONDENT EXHIBIT P7OF THE APPEAL NO. ST/20162/2020- DB BEFORE THE CUSTOMS, EXCISE AND SERVICE TAX, APPELLATE TRIBUNAL, BANGALURU DATED 19-02-2020 EXHIBIT P8OF THE APPEAL NO. ST/20163/2020- DB BEFORE THE CUSTOMS, EXCISE AND SERVICE TAX, APPELLATE TRIBUNAL, BANGALURU DATED 19-02-2020 EXHIBIT P9OF THE LETTER DATED 07-02-2018 SUBMITTED UNDER THE RIGHT TO INFORMATION ACT TOGETHER WITH ITS REPLY DATED 23-02- 2018 ISSUED BY THE SENIOR DIVISIONAL ENGINEER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM EXHIBIT P10OF THE LETTER DATED 19-08-2020 TO THE PETITIONER ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11OF THE REPLY DATED 03-09-2020 BEFORE THE 2ND RESPONDENT BY THE PETITIONER.