Dismissed

Smt.Chachuykutty Thomas v. the Assistant Commissioner of Central Excise

Kerala HC1 Jun 2016WP(C)/2338/2016

Case brief

AI extract

What is this about?

Petitioner challenged a bank notice for retaining Rs. 60,000 as late fee. Court held that since the demand itself was unchallenged and liability is a factual question, the writ petition was not maintainable. Petitioner directed to approach appellate authority.

What did the court decide?

Petitioner directed to approach appellate authority under Section 35 of the Central Excise Act; no further directions passed.

Smt.Chachuykutty Thomas Vs the Assistant Commissioner of… — Customs and Excise | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938

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WP(C).No. 2338 of 2016 (N)

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PETITIONER(S) :

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SMT.CHACHYKUTTY THOMAS, PROPRIETOR, CARETECH ADVERTISERS, KALLATH APARTMENTS, 42/1454, MATHAI MANJURAN ROAD, ERNAKULAM NORTH, COCHIN - 682 018.

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BY ADVS.SRI.E.P.GOVINDAN SMT.G.DEEPA SRI.P.ABRAHAM CHERIAN

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RESPONDENT(S) :

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THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX DIVISION, CENTRAL EXCISE BHAVAN, KATHRIKADVU, COCHIN - 682 017.

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THE SUPERINTENDENT, CENTRAL EXCISE SERVICE TAX, CENTRAL E RANGE, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, COCHIN - 682 017.

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THE MANAGER, HDFC BANK LTD, SHOP NO.14, CORAL CREST PLOT 3, SECTOR 23, NEAR NERUL RAILWAY STATION, NERUL THANE, MAHARASHTRA - 600 014.

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THE GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE & CUSTOMS, SERVICE TAX WING, NEW DELHI - 600 001.

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R1, R2 & R4 BY ADV.SRI.THOMAS MATHEW NELLIMOOTTIL, S.C R3 BY ADV.SRI.T.RAJESH, S.C

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 2338 of 2016 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1: TRUE COPY OF THE NOTICE DATED 30.12.2015 ISSUED BY THE FIRST RESPONDENT.

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P2: TRUE COPY OF THE NOTICE DATED 16.09.205 ISSUED BY THE FIRST RESPONDENT.

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P3: TRUE COPY OF THE REPLY DATED 05.10.2015 FILED BY THE PETITIONER.

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P4: TRUE COPY OF THE NOTICE DATED 15.10.2015 ISSUED BY THE FIRST RESPONDENT.

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P5: TRUE COPY OF THE REPLY DATED 02.11.2015 FILED BY THE PETITIONER.

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P6: TRUE COPY OF THE LETTER DATED 13.11.2015 FILED BY THE PETITIONER.

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P7: TRUE COPY OF THE LETTER DATED 10.12.2015 ISSUED BY THE SECOND RESPONDENT DEMANDING LATE FEE AND INTEREST.

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P8: TRUE COPY OF THE LETTER DATED NIL FILED BEFORE THE FIRST RESPONDENT.

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P9: TRUE COPY OF THE SCREESHOT OF THE ACKNOWLEDGEMENT.

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P10: TRUE COPY OF THE LETTER DATED 12.01.2016 FILED BEFORE THE FIRST RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

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EXT.R1: A TRUE COPY OF THE STATUS OF ST-3 RETURNS DATED 20.10.2015.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.2338 of 2016

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Dated this the 1^st day of June 2016

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J U D G M E N T

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Petitioner challenges Ext.P1 notice issued by the Assistant Commissioner, Central Excise to the Manager, HDFC Bank Ltd to prohibit the petitioner from withdrawing an amount of Rs.60,000/from his account kept with the 3^rd respondent bank. Petitioner submits that though he had uploaded the returns in time, and on account of some error, the same was not taken on record. Subsequently, on the basis of a direction issued by the respondent authorities, returns were filed. However, petitioner was called upon to pay an amount of Rs.60,000/- by Ext.P7 letter dated 10/12/2015. Petitioner submits that he is not liable to pay the said amount. Though he has filed an objection as Ext.P8, no orders have been passed and in the meantime, steps have been taken to recover the amount from the 3^rd respondent Bank.

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Ext.P1, apparently, is a notice issued to the 3^rd respondent Bank for retaining an amount of Rs.60,000/-. The notice was issued invoking power under Section 87(b)(i) of Chapter V of the Finance Act, 1994. In Ext.P1, it is stated that on account of delay in filing ST-3 return for the financial years 2013-2014 and

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W.P.C.No.2338/2016

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2014-2015 (first half), an amount of Rs.60,000/- is due as late fee under the provisions of Rule 7C of the Service Tax Rules, 1994 read with Section 70 of Chapter V of the Finance Act.

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Having regard to the fact that there is no challenge in the demand made by the Department in this writ petition, I do not think that this Court will be justified in considering the validity of Ext.P1. Ext.P1 is only an intimation issued by the Bank.

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Petitioner has only sought for a declaration that no late fee is payable. Whether late fee is payable or not are all questions of fact which cannot be considered by this Court in a writ petition under Article 226 of the Constitution of India. If the petitioner is aggrieved by Ext.P7, his remedy is to file an appeal under Section 35 of the Central Excise Act, 1944. Under such circumstances, I do not think that any further directions are required to be passed in this writ petition.

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This writ petition is hence dismissed reserving right of the petitioner to approach the appellate authority in terms of Section 35 of the Central Excise Act.

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jsr

Smt.Chachuykutty Thomas v. the Assistant Commissioner of Central Excise

Case brief

What is this about?

What did the court decide?

Smt.Chachuykutty Thomas v. the Assistant Commissioner of Central Excise

Case brief

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