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TMI Blog2014 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... which may be available to the petitioner under the law are kept open which the authority is bound to consider the same in accordance with law and on merits at the time of adjudication. - Petition dismissed - Decided against the assessee. - Special Civil Application No. 16725 of 2013 - - - Dated:- 20-11-2013 - M.R. Shah and R.P. Dholaria, JJ. Shri Jigar Shah, Senior Advocate with Anand Nainawati, Advocate, for the Petitioner. Shri Jaimin Gandhi, AGP, for the Respondent. ORDER By way of this petition under Article 226 of the Constitution of India, the petitioner had prayed for appropriate writ, order and/or direction to quash and set aside the impugned show cause notice dated 23-4-2013 issued by the respondent No. 3 her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 73(1) of the Finance Act, 1994 and also to show cause why interest and penalty should not be demanded and recovered from them. According to the respondent No. 3, the petitioner is also engaged in providing services falling under the category of Supply of Tangible Goods Services for use. It is mentioned in the show cause notice that from the Agreements between the petitioner and M/s. Essar Steel Ltd. and M/s. DFL, it is clear that the petitioner has provided equipments to Ms. Essar Steel Ltd. and M/s. DFL without transferring right which satisfies the conditions to the provisions of sub-section (zzzzj) of Section 65(105) of the Finance Act, 1994, wherein the service provided to any person, by any other person in relation to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Advocate appearing on behalf of the petitioner has tried to make further submissions on merits by submitting that there is no question of applicability of aspect theory in the present case and therefore, the impugned show cause notice deserves to be quashed and set aside. However, for the reasons stated hereinbelow, we propose not to entertain the present petition, as the present petition is at the stage of show cause notice and dispute is yet to be adjudicated upon by the appropriate authority as to whether the petitioner is liable to pay Service Tax or not, we do not propose to consider the submissions on merits whether the petitioner is liable to pay Service Tax or not at this stage. 3.2 Mr. Jigar Shah, learned counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from them. 4.2 In the case of Commissioner of Income-Tax, Gujarat v. Vijaybhai N. Chandrani, reported in (2013) 35 Taxman.com 580 (SC), it is observed and held by the Hon ble Supreme Court that when an alternative remedy is available to the aggrieved party, it must exhaust the same before approaching the writ Court. In the said decision, the Hon ble Supreme Court has also observed its another decision in the case of Bellary Steels Alloys Ltd. v. CCT, reported in (2009) 17 SCC 547 taking the view that High Court should not have interfered in the matter as the Writ Petition was filed without even reply to the show cause notice. In the said decision, the Hon ble Supreme Court has also considered the decision in the case of Indo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court may entertain the petition under Article 226 of the Constitution of India against the show cause notice is concerned, the same cannot be accepted. It cannot be said that the respondent No. 3 - Commissioner of Central Excise Customs who issued the impugned show cause notice, lacks total jurisdiction to issue the show cause notice with respect to Service Tax. It is different thing that after considering the reply of the petitioner to the show cause notice, the respondent No. 3 may or may not hold that the petitioner is liable to pay Service Tax. However, merely because according to the petitioner the petitioner is not liable to pay Service Tax on the transaction, by itself, it cannot be said that the show cause notice issued by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed. However, it is observed that all the defences which may be available to the petitioner under the law are kept open which the authority is bound to consider the same in accordance with law and on merits at the time of adjudication. We also make it clear that we have not expressed any opinion on merits in favour of either of the parties as to whether the petitioner is liable to pay Service Tax on the same transaction in question for which the show cause notice has been issued and it is ultimately for the adjudicating authority to pass appropriate order in accordance with law and on merits, after considering the reply that may be filed by the petitioner and/or submissions to be made by the petitioner. 6. With this, present Special ..... X X X X Extracts X X X X X X X X Extracts X X X X
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