Kurian And Varghes,E vs. The Asst. Commissioner Of Central Excise And Service Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THUR AY, THE 26TH DAY OF SEPTEMBER 2019/4TH ASWINA, 1941 W.P(C).No.22306 OF 2019(K) PETITIONER: M/S.KURIAN & VARGHESE 1/656 D, MULANTHURUTHY SERVICE CO-OPERATIVE BANK BLDG., PIRAVOM ROAD, MULANTHURUTHY, ERNAKULAM - 682 14. BY ADVS.SMT.S.K.DEVI SRI.M.RAJ MOHAN SRI.SHANMUGHAM D. JAYAN SMT.P.K.MAYA DEVI RESPONDENTS: 1 THE ASST. COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, MUVATTUPUZHA DIVISION, MUVATTUPUZHA - 686 661. 2 THE ASST. COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, KAKKANAD DIVISION, GST BHAWAN, KATHIRIKADAVU, KALOOR - 682 017. 3 THE CHIEF COMMISSIONER, CENTRAL EXCISE & SERVICE TAX COCHIN COMMISSIONERATE, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, ERNAKULAM - 682 018. 4 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVT. OF INDIA, NORTH BLOCK NEW DELHI - 110 001. R1-3 BY SRI.SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS R4 BY SRI.P.R.AJITH KUMAR, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).No.22306/2019 : 2 :

J U D G M E N T The petitioner has approached this Court challenging Ext.P1 order passed by the Assistant Commissioner of Central Excise, confirming a demand of Rs.49,60,660/- together with interest and penalty on the petitioner under the Finance Act, 1994, governing service tax. Although various contentions are raised in the writ petition, in its challenge against Ext.P1 order, I find that, against Ext.P1 order, the petitioner has an effective alternate remedy by way of an appeal before the Appellate Authority under the Act. The petitioner has not made out any case warranting an interference with the said order under Article 226 of the Constitution of India. Accordingly, without prejudice to the right of the petitioner to move the Appellate authority, or in the alternative, to seek a rectification of Ext.P1 order before the Assessing authority itself, the writ petition, in its challenge against Ext.P1 order, is dismissed. Taking note of the prayer of the learned counsel for the petitioner that she would require some time to move the Assessing authority/Appellate authority, I direct that recovery proceedings for

W.P.(C).No.22306/2019 : 3 : recovery of amounts confirmed against the petitioner by Ext.P1 shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to approach the Assessing authority/Appellate authority, in the meanwhile. A.K.JAYASANKARAN NAMBIAR JUDGE prp/26/9/19

W.P.(C).No.22306/2019 : 4 : APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE ORDER IN - ORIGINAL NO.II/2019/ST(KKD) DATED 22/05/2019. EXHIBIT P2OF THE RELEVANT PAGES OF FINANCE ACT. EXHIBIT P3OF THE ST3 RETURN WITH ACKNOWLEDGMENT RECEIPT. EXHIBIT P4OF THE COVERING LETTER DATED 8TH NOVEMBER 2016. EXHIBIT P5OF THE ORDER IN ORIGINAL NO.33/2007(4) DATED 03/02/2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6OF THE NOTICE DATED 29/08/2018. EXHIBIT P7OF THE REPLY DATED 17TH OCTOBER 2018. EXHIBIT P8 RESPONDENTS EXHIBITS:OF THE E-RECEIPTS FOR CENTRAL SERVICE TAX PAYMENTS ISSUED BY STATE BANK OF INDIA IS PRODUCED. NIL. //// P.S. TO JUDGE