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2024 (2) TMI 19 - HC - Service TaxMaintainability of petition - availability of alternative and efficacious remedy - validity of the demand-cum-show cause notice dated 23-4-2021 as well as the order-in-original - HELD THAT - in the light of the observations made by the Supreme Court of India in the herein before referred case of THE STATE OF MAHARASHTRA AND OTHERS VERSUS GREATSHIP (INDIA) LIMITED 2022 (9) TMI 896 - SUPREME COURT , the existence of an alternative relief would dissuade the Court from entertaining the writ petition. Therefore, the cases cited by the Learned Counsel for the petitioner is not found to help the petitioner. Hence, the Court finds no reason to burden this order with the discussion on the same because reliance has been placed on the case of Greatship (India) Ltd. The Court is of the considered opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled for exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to this case. The direction to relegate a taxpayer to avail statutory remedy, which is more efficacious is the principle of self-restrain adopted by the constitutional Courts. Therefore, as alternative and efficacious remedy is available to the petitioner, this Court is not inclined to entertain this writ petition and therefore, this writ petition challenging the legality of the impugned order-in-original No. 30/Pr.Commr./ST/GHY/2021-22, dated 14-3-2022 stands dismissed at the motion stage without issuance of notice upon the respondents. Petition dismissed.
Issues Involved:
1. Maintainability of the writ petition under Article 226 of the Constitution of India. 2. Validity of the demand-cum-show cause notice and the order-in-original issued by the Principal Commissioner, CGST & Central Excise. Summary: Issue 1: Maintainability of the Writ Petition The respondents raised a preliminary issue on the maintainability of the writ petition, arguing that an alternative and efficacious remedy was available to the petitioner through an appeal before the appellate authority. They cited the Supreme Court's decision in *Magadh Sugar & Energy Ltd. v. State of Bihar & Ors.*, emphasizing that the petitioner had not filed the necessary documents and had failed to respond to notices, thus not making a case for bypassing statutory remedies. The petitioner countered by asserting that the construction services provided were exempt from service tax liability under Mega Exemption Notification No. 25/2012. They relied on several cases, including *Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority & Ors.*, to argue that the existence of an alternative remedy does not always preclude the writ court from entertaining the petition. The court, referencing the Supreme Court's decision in *The State of Maharashtra & Ors. v. Greatship (India) Ltd.*, held that the existence of an alternative remedy dissuades the court from entertaining the writ petition. The court emphasized the principle of self-restraint and directed the petitioner to avail the statutory remedy. Issue 2: Validity of the Demand-Cum-Show Cause Notice and Order-In-Original The petitioner challenged the demand-cum-show cause notice dated 23-4-2021 and the order-in-original dated 14-3-2022, which confirmed a service tax demand of Rs. 2,17,50,747/-, along with interest and penalties under various sections of the Finance Act, 1994. The respondents argued that the petitioner had not filed the ST-3 return for the financial year 2015-16 and had not paid service tax on receipts against taxable services. They further contended that the petitioner had suppressed material facts and failed to submit necessary documents despite reminders. The petitioner claimed that the services provided were exempt from service tax and produced a letter from the Ministry of Home Affairs stating that the construction of bailey bridges was not liable for service tax. However, the court found that the petitioner had not provided sufficient proof to substantiate that all receipts were exempt from service tax. The court concluded that the materials available in the writ petition were insufficient to satisfy that the petitioner had produced proof before the respondent No. 2 regarding the exemption of the service component from service tax. Consequently, the court dismissed the writ petition at the motion stage without issuing notice to the respondents. Conclusion: The court dismissed the writ petition on the grounds that an alternative and efficacious remedy was available to the petitioner. The petitioner was advised to seek this remedy, and the period spent on the writ petition would be excluded from the computation of limitation for filing an appeal. There was no order as to costs.
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