Kerala Co-Operative Deposit Guarantee Fund Board vs. Commissioner Of Central GST And Central Excise - Kerala High Court, 12 April 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 WP(C).No. 11200 of 2018 ----------------------- PETITIONER(S): -------------- 1 KERALA CO-OPERATIVE DEPOSIT GUARANTEE FUND BOARD, TC 25/1955(4), MANJALIKULAM ROAD, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY THE SECRETARY - TREASURER. 2 SECRETARY - TREASURER, KERALA CO-OPERATIVE DEPOSIT GUARANTEE FUND BOARD, TC 25/1955(4), MANJALIKULAM ROAD, THIRUVANANTHAPURAM - 695 001. BY SRI.ASHOK M.CHERIAN, SC RESPONDENT(S): -------------- 1. COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE, GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM - 695 001. 2. THE SUPERINTENDENT OF CENTRAL GST AND CENTRAL EXCISE, STATUE RANGE, SREYAS BUILDING, GPO LANE, PULIMOODU, STATUE, THIRUVANANTHAPURAM - 695 001. BY SRI. SREELAL N. WARRIER, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 11200 of 2018 (Y) -------------------------- APPENDIX PETITIONERS' EXHIBITS: --------------------- EXHIBIT P1. A TRUE COPY OF THE NOTIFICATION S.R.O NO.28/2012 WITH G.O.(P) NO.03/2012/CO-OP. DATED 11.01.2012 ISSUED BY THE CO-OPERATION (A) DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P2. A TRUE COPY OF THE ORDERS-IN-ORIGINAL NO.TVM-EXCUS-000-COM-64 & 65-17-18 DATED 17.10.2017 PASSED BY THE 1ST RESPONDENT. EXHIBIT P3. A TRUE COPY OF THE APPEAL NO.ST/20164/2018-DB, WITHOUT ANNEXURE, FILED BY THE 1ST PETITIONER AGAINST ORDER IN ORIGINAL NO.TVM-EXCUS-000-COM-64-17-18 DATED 17-10-2017 OF THE 1ST RESPONDENT BEFORE THE CESTAT, BANGALORE. EXHIBIT P4. A TRUE COPY OF THE APPEAL NO.ST/20162/2018-DB, WITHOUT ANNEXURE, FILED BY THE 1ST PETITIONER AGAINST ORDER IN ORIGINAL NO.TVM-EXCUS-000-COM-65-17-18 DATED 17.10.2017 OF THE 1ST RESPONDENT BEFORE THE CESTAT, BANGALORE. EXHIBIT P5. A TRUE COPY OF THE LETTER OC NO.36/2018 DATED 22.01.2018 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXHIBIT P6. A TRUE COPY OF THE LETTER NO.KCDGFB/G1/2017 DATED 14.02.2018 SUBMITTED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P7. A TRUE COPY OF THE LETTER OC NO.62/2018 DATED 14.02.2018 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXHIBIT P8. A TRUE COPY OF THE LETTER NO.KCDGFB/1037/2017 DATED 03.03.2018, SUBMITTED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P9. A TRUE COPY OF THE SUMMONS NO.16/2017-18 UNDER OC NO.97/2018 DATED 21.03.2018 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. RESPONDENTS' EXHIBITS: NIL --------------------- /TRUE COPY/ P.S.TO JUDGE mbr/ 21.04.2018. P.B. SURESH KUMAR, J. ======================= W.P.(C) No.11200 of 2018 --------------------------------------- Dated this the 12th day of April, 2018

JUDGMENT First petitioner is the Board constituted by the Government of Kerala for administration of the Deposit Guarantee Fund constituted under the Kerala Co-operative Deposit Guarantee Scheme, 2012 and the second petitioner is the Secretary of the first petitioner Board. In terms of Ext.P9 summons, the second respondent has called upon the second petitioner in his capacity as the Secretary of the first petitioner Board to give evidence and produce the documents mentioned therein concerning the enquiry against the first petitioner relating to their liability to pay service tax under the Finance Act, 1994. Ext.P9 summons is under challenge in the writ petition.

Heard the learned counsel for the petitioners as also the learned Standing Counsel for the respondents.

The juri iction of the second respondent to issue a summons in the nature of one impugned in the writ petition under Section 14 of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, is not in dispute. On the other hand, the petitioners challenge the impugned summons on the ground that the first petitioner Board has no liability to pay service tax in respect of its transactions under the Finance Act, 1994. 4. It is seen that proceedings have been initiated earlier by the first respondent against the first petitioner for realisation of the service tax payable by them under Finance Act, 1994 and orders have been issued repelling the contention as to their liability to pay service tax. The first petitioner challenged the said orders in appeal before the Customs, Central Excise and Service Tax Appellate Tribunal, Bangalore in Exts.P3 and P4 appeals on the very same ground that they have no liability to pay service tax, and the said appeals are pending. In other words, the issue to be decided in the said appeals as also in the writ petition is one and the same. In the circumstances, I am of the view that it may not be appropriate to permit the petitioners to raise the said issue collaterally in this proceedings. On the facts of this case, it would have been appropriate for the petitioners to approach the Appellate Tribunal referred to above for relief in respect of the summons which is impugned in the writ petition. The writ petition, in the circumstances, is dismissed without prejudice to the right of the petitioners to move the Appellate Tribunal for appropriate relief, if so advised. P.B. SURESH KUMAR, JUDGE //// P.A. To Judge sp