9911796707
TMI Blog2017 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... AZIRI JJ. Petitioner Through: Sh. S.C. Ladi, Sr. Advocate with Sh. Rajesh Jain and Sh. Virag Tiwari, Advocates. Respondent Through: Sh. Sanjeev Narula, CGSC. MR. S. RAVINDRA BHAT 1. The petitioner in these writ proceedings seeks an order for quashing of summons, requiring it to appear and produce documents in connection with the service tax demands outstanding against it. 2. The brief facts of the case are that the petitioner is an authorized dealer inter alia of Maruti Suzuki India Limited (MSIL) and in that capacity sells its cars. In the course of business, Maruti Finance, a unit of Maruti Udyog Limited (MUL) paid certain amounts of commission to the petitioner; the commercial activity underlying this transaction falls within the description of business auxiliary service under Section 65(105) of the Finance Act, 1994. Therefore, service tax is payable by the petitioner. A Show Cause Notice was issued to the petitioner by the Commissioner of Service Tax on 21.12.2006 and proceedings were initiated for non-payment of tax for the period February 2004 to March 2006. After considering the submissions of the petitioner, the Commissioner of Sales Tax took note o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made because the time period of two years to seek rectification/amendment u/s 74 of the Act is still available to the applicant as the order whose rectification is sought was passed on 25.09.2012. 5. This application for rectification was followed up by reminders dated 26.09.2014, 30.10.2014 and 21.11.2014. Aggrieved by the inaction, the petitioner approaches this Court for a direction to quash the summons. The principal ground urged is that for the relevant period, the service tax demanded, i.e. in respect of the amount of ₹ 31,83,356/-, service tax had been deposited by MUL. 6. Learned counsel for the petitioner contends that the respondents inaction and deliberate refusal to verify and cross-check its assertions that for the concerned period, service tax in fact had been deposited by MUL, is arbitrary. In this regard, learned counsel relies upon the certificate of MUL/Maruti Finance and T.R. Challans that were deposited with the service tax department on 08.03.2011. This could have been verified and the proceedings for recovering the outstanding demand of ₹ 31,83,356/-, dropped. The petitioner also relies upon a certificate of MUL dated 25.09.2012. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 Delhi Apr-04 62,84,777.05 4. 0806 08 Delhi May-04 51,33,513.38 5. 0806 08 Delhi Jun-04 50,32,486.11 6. 0806 08 Delhi Jul-04 65,96,022.39 7. 0806 08 Delhi Aug-04 61,08,977.52 Total 3,97,79,834. 45 M/s. Competent Automobiles Co. Ltd. has informed MSIL that the service tax on the said amount of ₹ 3,97,79,834.45 works out to ₹ 31,83,356/-. The said amount of ₹ 3,97,79,834.45/- paid to M/s. Competent Automobiles Co. Ltd. formed part of the total amount of ₹ 1,44,37,72,022.84/- received by MSIL on which MSIL paid the service tax of ₹ 11,55,01,761.83/-. The said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducted towards the commission made over to the petitioner, the relief claimed cannot be granted in these proceedings. It was submitted that the proper mechanism to workout the claim such as the one made out by the petitioner in this case was of refund. There too, the petitioner failed to avail of the remedies, which has since been rendered time-barred. In the circumstances, no relief can be granted in the absence of any material or admission which shows that ₹ 31.82 lakhs was ever received by the service tax department. 10. From the narrative, it is apparent that this is the third writ petition in sequence as it were for the same relief. On the first occasion, the petitioner had approached this Court, aggrieved by the demands made pursuant to the orders-in-original. That order-in-original had attained finality in 2007 itself. The petitioner claimed to be aggrieved by a demand dated 25.09.2012 for the sum outstanding, i.e. ₹ 31.82 lakhs. This Court refused to entertain the matter and permitted withdrawal of the writ petition. The petitioner thereafter approached the CESTAT, which dismissed the appeal on the ground of delay. The Court too upheld that order of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the consideration/service received, for which tax is to be paid. There is no positive assertion that the amount or the portion of the commission, which is apparently of a substantial percentage- to the petitioner are also deducted in service tax. In other words, the service tax returns of MUL/MSIL would reflect the amounts received and retained by it and not necessarily include within the turnover the amounts received in aggregate. Therefore, the petitioner s contention that MUL/MSIL had paid for the transaction so as to absolve it of its liability to satisfy the demands is clearly unfounded. 12. This Court is further of the opinion that the procedural history of the case is such that the petitioner had several statutory remedies not just the appeal which it preferred belatedly but even an application for refund. If in reality it possessed proof to show that MSIL or someone else had discharged the liability on its behalf, its inaction in availing those remedies implies that the matter attained finality some time in 2008-09. Its present attempt a third one at that - to seek the same relief but by presenting a different dimension is clearly misconceived if not an abuse of th ..... 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