Allowed

Skymark Builders v. the Assistant Commissioner(Audit)

Kerala HC17 Oct 2019WP(C)/22876/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging a service tax and penalty demand. The court held there was no jurisdictional defect in the order and an effective alternative remedy existed. It directed the petitioner to remit the requisite pre-deposit to maintain the appeal before the First Appellate Authority within two weeks.

What did the court decide?

Directing the petitioner to remit the pre-deposit required for maintaining the appeal within two weeks and directing the appellate authority to dispose of the appeal within three months on receipt of

Skymark Builders Vs the Assistant Commissioner(Audit) — GST and Indirect Tax | Kerala HC (2019)

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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.K.JAYASANKARAN NAMBIAR

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THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941

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WP(C).No.22876 OF 2019(H)

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PETITIONER/S:

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SKYMARK BUILDERS 11/184,P.T.MANUAL ROAD, THIRUVAMBADY P.O., THRSSUR, PIN-680022,REPRESENTED BY ITS PARTNER MR. PADMA PRASSAD

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BY ADVS. SRI.C.A.JOJO SRI.JACOB CHACKO SRI.MATHEWS JOSEPH SMT.SWATHY S.

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RESPONDENT/S:

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1 THE ASSISTANT COMMISSIONER(AUDIT) OFFICE OF THE ASST. COMMISSIONER OF AUDIT, CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, CALICUT CIRCLE, TOWN HALL ROAD, THRISSUR-680 020

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2 THE ASSISTANT COMMISSIONER, OFFICE OF THE ASST, COMMISSIONER, CENTRAL TX AND CENTRAL EXCISE, THRISSUR DIVISION, C.R.BUILDING, THRISSUR-680001

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R1-R2 BY SRI.RAJESH B., SC, CENTRAL BOARD OF EXCISE & CUSTOMS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.22876 OF 2019(H)

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JUDGMENT

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The petitioner has approached this Court aggrieved by Ext.P11 order of the 2^nd respondent confirming the demand of service tax and penalty on the petitioner. Although various contentions are raised in the writ petition in its challenge against Ext.P11 order, I find that the said order does not suffer from any jurisdictional defect nor is it vitiated on account of any non-compliance with the principles of natural justice. I, therefore, see no reason to interfere with the said order in these proceedings under Article 226 of the Constitution of India. This is more so, because the petitioner has an effective alternative remedy by way of an appeal before the First Appellate Authority under the Finance Act, 1994 as amended, as applicable to service tax.

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The learned counsel for the petitioner would submit that he has already preferred an appeal before the First Appellate Authority, but he has not remitted the fee and pre-deposit required to support the appeal. Taking note of this submission, I dispose the writ petition by directing that the petitioner to remit the pre-deposit required for maintaining the appeal before the appellate authority and on his so doing, the appellate authority shall proceed to consider and pass orders in the appeal within a period of three months from the date of receipt of a copy of this judgment. On the petitioner making the statutory pre-deposit to maintain the appeal, within a period of two weeks from today, the appellate authority shall proceed to dispose the appeal as directed, and in the meanwhile, recovery steps for recovery of the balance tax and penalty confirmed against the petitioner by Ext.P11 order shall be kept in abeyance. The petitioner shall

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WP(C).No.22876 OF 2019(H)

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produce a copy of the writ petition together with a copy of the judgment before the respondents for further action.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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WP(C).No.22876 OF 2019(H)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	THE TRUE COPY OF THE STATEMENT OF SERVICE TAX PAID BY THE CONTRACTOR AND CENVAT CREDIT ON INPUT SERVICE AVAILED BY THE PETITIONER FOR THE PERIOD 2012-2013 TO 2015- 2016 DATED NIL
EXHIBIT P2	TRUE COPIES OF THE SERVICES TAX REMITTANCE CERTIFICATE DATED 18.05.2017 SUBMITTED TO THE 2ND RESPONDENT
EXHIBIT P3	TRUE COPY OF THE TAX PAID STATEMENT FOR THE PERIOD 2012-13 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P3(a)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 10.07.2012 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P3(b)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 03.12.2012 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P3(c)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 17.01.2013 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P4	A TRUE COPY OF THE FORM ST 3 FOR 4TH QUARTER FILED BY THE WINGS ENGINEERS AND CONTRACTORS DATED 25.09.2013
EXHIBIT P5	TRUE COPY OF THE TAX PAID STATEMENT FOR THE PERIOD 2013-14 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS & CONTRACTOS
EXHIBIT P5(a)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 29.07.2013 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P5(b)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 29.10.2013

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WP(C).No.22876 OF 2019(H)

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EXHIBIT P5(c)	SUBMITTED TO THE 2ND RESPONDENT TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 13.01.2014 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P5(d)	TRUE COPY OF THE TAX PAID RECEIPT FROM THE STATE BANK OF TRAVANCORE DATED 23.04.2014 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6	TRUE COPY OF THE TAX PAID STATE FOR THE PERIOD 2014-15 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6(a)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 15.07.2014 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6(b)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 25.06.2014 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6(c)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 08.10.2014 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6(d)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 06.01.2015 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P6(e)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 07.04.2015 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P7	TRUE COPY OF THE TAX PAID STATEMENT FOR THE PERIOD 2015-16 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P7(a)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 10.08.2015 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS

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WP(C).No.22876 OF 2019(H)

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EXHIBIT P7(b)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 21.10.2015 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P7(c)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 02.02.2016 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P7(d)	TRUE COPY OF THE TAX PAID RECEIPT FROM HDFC BANK DATED 06.04.2016 SUBMITTED TO THE 2ND RESPONDENT BY THE WINGS ENGINEERS AND CONTRACTORS
EXHIBIT P8	A TRUE COY OF THE AUDIT REPORT AS AR NO.372/ST/63/2016-17 DATED NIL BY THE 1ST RESPONDENT AUDIT WING
EXHIBIT P9	A TRUE COPY OF THE SHOW CAUSE NOTICE NO.11/2017 ST DATED 24.04.2017 ISSUED THE 1ST RESPONDENT
EXHIBIT P10	A TRUE COPY OF THE REPLY TO SHOW CAUSE NOTICE DATED 24.05.2017 FILED BEFORE THE 1ST THE RESPONDENT
EXHIBIT P11	A TRUE COPY OF THE ORDER -IN -ORIGINAL NO.07/2009-20 ST DATED 02.07.2019 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P12	THE RELEVANT PART OF THE CIRCULAR NO.1063/2/2018-CX DATED 16.02.2018 ISSUED BY CBEC

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Skymark Builders v. the Assistant Commissioner(Audit)

Case brief

What is this about?

What did the court decide?

Skymark Builders v. the Assistant Commissioner(Audit)

Case brief

What is this about?

What did the court decide?

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