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TMI Blog2017 (8) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... law. This finding had been accepted by the petitioner, as the petitioner appears to have not canvassed the matter on merits, though the Court observed that an overruled judgment of the Supreme Court has been relied on. Apart from that, the Court also held that it cannot be known as to what extent, the first respondent was influenced by referring to an overruled judgment and as to how the overruled judgment has had a bearing on the manner in which the subject contracts have been viewed. Thus, the petitioner did not canvass the merits of the case and appears to have been satisfied with the order passed by the Court remanding the matter for denova consideration to consider as to what extent the Adjudicating Authority was influenced by the ratio of the overruled judgment in the case of Kone Elevators India Pvt., Ltd.,[2005 (2) TMI 519 - SUPREME COURT OF INDIA], did it have a bearing on the manner in which the subject contracts have been viewed. When the Court at the very threshold held that question as to whether the transaction is composite in nature or not, is a mixed question of fact and law, and it would be the answer to the petitioner's present challenge of the impugned order r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied in relation to the said contract, where the petitioner has opted to pay service tax under the said scheme; the value of the Works Contract Service is liable to be arrived in terms of Rule 2A of the Service Tax (Determination of Value) Rules, 2006 and for the other contract and service tax liability thereon be assessed accordingly and confirmed the demand of ₹ 1,28,35,06,641/- towards differential service tax payable for the period from 2008-09 to 2012-13 and interest and imposed penalty under Section 77(2) and Section 78 of the Finance Act, 1994. 3. It is not in dispute that as against the impugned order, the petitioner has an alternate remedy by way of an appeal to the Customs Excise and Service Tax Appellate Tribunal, Chennai. Without exhausting such remedy, the petitioner has approached this Court by way of this Writ Petition. Thus, the Court posed a preliminary question to the learned Senior counsel appearing for the petitioner, as to how the Writ Petition is maintainable and why the petitioner should not be directed to avail the alternate remedy provided under the Act. 4. The learned Senior counsel after referring to the factual position, submitted that ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h order, after affording due opportunity to the petitioner. Needless to say, the copy of the order will be supplied to the petitioner. 13.3. I may also make it clear the fact that the impugned order has been set aside by this Court, will not be taken as a reflection on the merits of the matter. 5. From the above order, it is clear that the matter was remanded to the Adjudicating Authority on the sole ground that the authority referred to a judgment of the Supreme Court, which was overruled by the Larger Bench of the Supreme Court. The Court made it clear that setting aside the impugned order will not be taken as a reflection on the merits of the matter. In paragraph 12 of the order, dated 05.12.2016, the Court has summarised the submissions and while doing so, it has made an observation that the question whether the impugned transaction is composite in nature as alleged by the respondent is a mixed question of fact and law. 6. The learned Senior counsel invited the attention of this Court to several paragraphs of the impugned order, and submitted that the allegation in the show cause notice was that the composite works contract has been artificially vivisected into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that the main allegation in the notice is that all contracts entered into by the petitioner are lumpsum composite contracts involving both supply of goods and provision of taxable services. The petitioner has grossly inflated the value of the goods supplied by them under such contracts upto 178 to 219% of the value at which they purchased the goods from their vendors. Further, it is submitted that the questions involved in the instant case being factual, the petitioner should be directed to file an appeal against the impugned order. 9. I have heard Mr.A.R.L.Sundaresan, learned Senior counsel assisted by Mr.V.S.Manoj, learned counsel appearing for the petitioner and Mrs.R.Hemalatha, learned Senior Standing counsel for the respondents. 10. The petitioner at the first instance has to satisfy this Court it need not avail the appellate remedy provided under the Act. In the preceding paragraphs, this Court has summarized the grounds raised by the petitioner to justify the challenge to the impugned order by way of a Writ Petition. As prefaced, the petitioner though successful in the earlier attempt in getting the order set aside by filing W.P.No.38178 of 2016, the Court made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio of the overruled judgment in the case of Kone Elevators India Pvt., Ltd.,(supra), did it have a bearing on the manner in which the subject contracts have been viewed. 12. Thus, when the Court at the very threshold held that question as to whether the transaction is composite in nature or not, is a mixed question of fact and law, and it would be the answer to the petitioner's present challenge of the impugned order raising factual questions. The Tribunal being the last fact finding authority in the hierarchy of authorities is entitled to appreciate and re-appreciate the scope of the contract, whether it is composite in nature or otherwise and this exercise cannot be done in a Writ Petition. It appears that for this reason, the Court in the earlier Writ Petition pointed out that this question is a question of mixed question of fact and law. The Court was careful to make an observation that the question as to whether to what extent the first respondent was influenced by the overruled judgment, also cannot be known. Thus, the petitioner cannot now canvass the merits of the case in a Writ Petition, call upon this Court to examine as to whether the transaction is composite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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