Disposed

M/s. Prasanna Constructions (Now Closed), v. The Assistant Commissioner of Central Excise and Service Tax

Andhra Pradesh HC23 Apr 2024WP/9534/2024

Case brief

AI extract

What is this about?

Petitioner challenged non-withdrawal of attachment of its immovable properties for recovery of service tax despite a pending statutory appeal with 7.5% pre-deposit, invoking a CBEC circular barring coercive recovery during appeal. The High Court, without deciding merits, directed the Assistant Commissioner to decide the petitioner's withdrawal application within three weeks after hearing.

What did the court decide?

Direction to first respondent to pass orders in accordance with law on petitioner's application dated 15.02.2024 for withdrawal of attachment, within three weeks, with hearing; no costs.

M/s. Prasanna Constructions (Now Closed), Vs The… — GST and Indirect Tax | Andhra Pradesh HC (2024)

¶1

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction) ^

¶2

WEDNESDAY, THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY FOUR

¶3

o
H

¶4

PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

¶5

WRIT PETITION NO: 9534 OF 207d

¶6

Between:

¶7

Constructions (Now Closed), Rep. by its Sole Proprietrix, mt Kasi Reddy Prasanna, w/o Adi Narayana Reddy, D No 6-2- 802 Brundavan Colony, Tadigadapa Donka Road, Tadigadapa YSR Tadigadapa Municipality, Krishna District, Andhra Pradesh

¶8

...Petitioner

¶9

AND

¶10

The Assistant Commissioner of Central Excise and Service Tax ’ (Now Assistant Commissioner of COST), Vijayawada GST Division , Road No. 2, Auto Nagar, Industrial Estate Vijayawada-520 007 Krishna District,

¶11

Andhra Pradesh

¶12

RmgThe CommissionerRoad, Guntur- 522006,of GST andGunturCustomsDistrict,(Appeals) Ldhm DPradeshNo 3-30-15

¶13

The Sub-Registrar, Sub-Registrar Office, Patamata, D. No. 40-9-50 DistricbAtdhra Krishna

¶14

The Branch Manager, Saptagiri Grameena Bank, Yenamalakuduru temple Street, Yenamalakudurii, Vijayawada -

¶15

^ort'h^SrckTewDS-110001""''^

¶16

...Respondents

¶17

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly in

¶18

the nature of MANDAMUS holding that the First Respondent is not justified <n not withdrawing the Proceedings vide C.No.V/ST/15/39/2012-Adi (ARC) dated 21-03-2022 issued by him to the Third '' Respondent, and C.No. V/ST/15/39/2012- Adj(ARC), dated 11-04-2022, issued by him to the Fourth Respondent, attaching the i immoveable properties of the Petitioner for recovery of the tax, penalty and interest due as per his Order in Original No. 02/2013 (ST), dated 30-01-2013 when the Petitioner has filed Statutory Appeal against the 47/2023 /GIST h Appeal No. d sa,d Appeal is pending and therefore there is deemed stay of the le-oHoiT of th'^"' ®«^'°S'2014-CX, dated 09-2014, of the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India, and consequently set aside the same.

¶19

jA NO: 1 OF 2024

¶20

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed i in support of the petition, the High Court may be P eased to grant stay of operation of attachment of the immovable properties Of the Petitioner by the First Respondent by issuing Proceedings vide C.No.V/ST/15/39/2012-AdJ(ARC) dated 21-03-2022 and 11-04-2022 to the Third and Fourth Respondents.

¶21

Counsel for the Petitioner:

¶22

Counsel for the Petitioner: SRI G NARENDRA CHETTY Counsel for the Respondents 1 & 2: Ms. SANTHI CHANDRA,

¶23

Jr. SC for CBIC

¶24

Counsel for the Respondent No. 3: GP FOR REGISTRATION & STAMPS Counsel for the Respondent No.4: NONE APPEARED

¶25

Counsel for the Respondent No. 5: SRI J.U.M.V.PRASAD The Court made the following order:

¶26

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

¶27

[3481]

¶28

(Special Original Jurisdiction)

¶29

WEDNESDAY ,THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY FOUR

¶30

PRESENT

¶31

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

¶32

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

¶33

WRIT PETITION NO: 9534/2024

¶34

Between:

¶35

M/s. Prasanna Constructions (now Closed) ...PETITIONER

¶36

AND

¶37

The Assistant Commissioner Of Central Excise And Service Tax and Others

¶38

...RESPONDENT(S)

¶39

Counsel for the Petitioner:

¶40

1.G NARENDRA CHETTY

¶41

Counsel for the Respondent(S):

¶42

GP FOR COMMERCIAL TAX

¶43

2.GP FOR REGISTRATION AND STAMPS (AP)

¶44

The Court made the following: (perHon’ble Sri Justice Ravi Nath Tilhari)

¶45

Heard Sri G. Narendra Chetty, learned counsel for the petitioner and Ms. Santhi Chandra, learned Junior Standing Counsel for CBIC for the respondent Nos.1 and 2 and J. U. M. V. Prasad, learned counsel for the respondent No.5, Union of India.

¶46

For the order proposed to be passed issuance of notice to the respondent Nos.3 and 4 is dispensed with.

¶47

With the consent of the parties counsel, the present writ petition is being decided finally at this stage.

¶48

This writ petition under Article 226 of the Constitution of India has been filed for the following relief:-

¶49

“It is therefore prayed that this Hon’ble Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly^inthenature of MANDAMUS holding that the First Respondent is not justified in not withdrawing the Proceedings vide C.No.V/ST/15/39/2012-AdJ(ARC), dated 21.03.2022 issued by him to the Third Respondent and C.No.V/ST/15/39/2012-AdJ(ARC), dated 11.04.2022 issued by him to the Fourth Respondent attaching the immoveable properties^ofthe Petitioner for recovery of the tax penalty and interest due as per his Order in Original No.02/2013 (ST), dated 30.01.2013 when the Petitioner has filed Statutory Appeal against the same before the Second Respondent vide Appeal No.47/2023-(G)ST by depositing 7.5% of the tax towards statutory deposit and the said Appeal is pending and therefore there is deemed stay of the balance tax penalty and interest as per Circular No.984/08/2014-CX, dated 16.09.2014, of the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India, and consequently^setaside the same and pass such other order or orders as may^bedeemedfit and proper in the circumstances of the case and in the interests of Justice. ”

¶50

The petitioner's grievance is that an adjudication order in Original No.2 of 2013 (ST) dated 30.01.2013 was passed by the respondent No.1 under the Provisions of the Finance Act, of which the petitioner was not aware. The respondent No.1 also issued proceedings dated 21.03.2022 to the Sub-Registrar, Patamata, Vijayawada, not to allow any transaction in respect of some of the petitioner’s immovable properties/assets as also another proceeding dated 10.04.2022 to the Branch Manager, Saptagiri Grameena Bank, respondent No.4, not to release the original^titledeeds.

¶51

Challenging the order dated 30.01.2013 for levy of^serviceontax “Commercial or Industrial Construction service” considering the same as works contract service” along with interest and penalty for the period March - 2008 to May - 2008, allegedly served on 20.10.2022 the petitioner preferred W.P.No.37475 of 2022 which was dismissed vide order dated 18.12.2023, however, granting liberty to the petitioner to file appeal against the impugned proceedings before the concerned Appellate Authority, with further direction to the Appellate Authority that, if the appeal was filed within a specified period, the Appellate Authority shall admit the appeal and after affording opportunity of hearing to both parties, dispose of the same in accordance with law and rules expeditiously. Thereafter, the petitioner filed the statutory appeal on 25.01.2024 which is pending before the respondent No.2, the Commissioner of G.S.T and Customs Appeals, Guntur District, Andhra Pradesh.

¶52

Learned counsel for the petitioner submits that the petitioner's appeal is pending. The petitioner has also deposited 7.5% of the tax. 8. Learned counsel for the petitioner submits that as per the circular dated 16.09.2014 (Ex.P7), Para 4.2 under the head, ‘Recovery of the Amounts during the Pendency of Appeal’ no coercive measures for recovery of balance amount can be taken.

¶53

Para 4.2 of the Circular dated 16.09.2014 reads as under:-

¶54

Amounts during the Pendency of 4.2i P fhp^°. measures for the recovery of balance amount Section SSF^'o Gem?? in terms of bee ion 35F of Central Excise Act. 1944 or Section 129E of Customs Act, 1962. shall be taken during the pendency of aoDea m^or'L^ to the jurisdictional au^horitie^s^ ino/ payment of stipulated amount as pre-deposit of 7 5% / 0%. subject o a limit of Rs.10 crores. as the case may be and (II) the copy of appeal memo filed with the appellate authority.”

¶55

Learned counsel for the petitioner further submits that the petitioner approached the respondent No. 1, the Assistant Commissioner of Central Excise and Service Tax now Assistant Commissioner of COST Vijayawada, Krishna District. Andhra Pradesh, vide letter dated 15.02.2024 (acknowledged on 19.02.2024) informing about above facts and requesting to withdraw the order dated 21.03.2022 addressed to the Sub-Registrar, Patamata, Vijayawada, but neither any response has been received from respondent No.1 nor the order dated 21.03.2022 has been withdrawn.

¶56

Considering the aforesaid submissions and going through the Circular Para 4.2 specifically, we dispose of this writ petition finally but without observing anything on the merits of the petitioner's claim either way. providing that the Assistant Commissioner of the Central Excise & Service Tax, 1®' respondent shall pass appropriate orders in accordance with law on the petitioner's application dated 15.02.2024 (Ex.P3) within a period of three (03) weeks from the date, a copy of this order is produced before the said Authority with due opportunity of hearing to the petitioner.

¶57

The petitioner shall submit the copy of this order annexing therewith a copy of Ex.P3 before the Authority - Respondent No.1.

¶58

No order as to costs.

¶59

As a sequel thereto, miscellaneous petitions, if any pending, shall also

¶60

stand closed.

¶61

To.

¶62

Sd/- K.TATA RAO DEPUTY REGISTRAR //TRUE COPY// j/^SECTlON OFFICER

¶63

Central Excise and Service Tax (Now

¶64

2 AutrN;S^?7rf®T® 11 GST Division, Road No ' Andhra Pradesh ' Viiayawada-520 007, Krishna District,

¶65

1. The Commissioner of GST and Customs (Appeais) D No 3-30 1*5 ’ 3 Khl’ ®^,"'“^522006, GunturDistrLt, Andhra Pradesh ' BeL^CMe Office, Patamata, D. No. 40-9-50 Andhra P^adesh^"^®^"' Vijayawada-520010, Krishna District, Branch^'iq^af Grameena Bank, Yenamalakuduru

¶66

^ Tho Q + ® ^®^^f^3l3kuduru, Vijayawada - 520007 ' Biock, N^vi'D^'elwTo^T ™°"

¶67

7 1° o" ^ '^®''®ndra Chetty, Advocate [OPUCI a .9^ *° -i G.M.V.Prasad, Advocate [OPUC] 9' Two rri? ^rof' Chandra, Jr. SC for CBiC [OPUC] PradSh [OUT^ * '^®9'®"'ation. High Court of Andhra

10.Two CD Copies RAM

HIGH COURT

DATED:24/04/2024

ORDER

WP.No.9534 of 2024

DISPOSING OF THE WP WITHOUT COSTS