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TMI Blog2019 (2) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notices dated 08.10.2015 and 30.09.2015 were issued to respondent nos.2 and 3, in anticipation of similar notices to its members, the first respondent-association also joined respondent nos.2 and 3 in the writ petition. In the aforesaid writ petition, the appellants herein have filed Civil Application No.2952 of 2017 raising preliminary objection with regard to maintainability of the writ petition itself. While allowing the Special Civil Application, the said civil application is also rejected by the High Court, by impugned order. 4. Necessary facts, in brief, are as under : First respondent is an association, whose members are transport operators engaged in the business of transportation of goods entrusted by the customers. By way of impugned show cause notices, the appellants have proposed to demand service tax from the respondents under the category of "cargo handling service", while it is the case of the respondents that the service which is being provided by them, falls under the taxable category of "goods transport agency". The respondents, to bolster their case, have placed reliance upon circulars dated 06.08.2008 and 05.10.2015 issued by the Central Board of Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incur for shipping lines for providing services at port area and transportation of goods through waterways. It is also their case that they would not add any margin while recovering money from their customers towards port and shipping line charges. 7. In the writ petition filed before the High Court, a preliminary objection was raised on behalf of appellant nos.2 and 3 with regard to maintainability of the petition. Firstly, it was pleaded that as the writ petition itself was directed against the show cause notices, such petition was not maintainable. Secondly, on the ground that as the controversy relates to classification of services and even if the show cause notices were to culminate into final order, appeal would lie before the Supreme Court, as such, High Court, in exercise of writ jurisdiction, should refrain from entertaining the petition which involves a classification dispute. It was pleaded that it was not either a case of lack of jurisdiction or a case where the principles of natural justice are violated, so as to entertain the petition in which only show cause notices were challenged. 8. On the other hand, it was the case of the respondent-original writ petitioners t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation and w.e.f. 16.05.2008, the definition of "cargo handling service" came to be amended by including the service of packing together with transportation of cargo or goods, with or without one or more other services like loading, unloading, packing, unpacking. 10. Precisely, it was the case of the appellants that once members of the respondent-association undertake the responsibility to deliver goods from consignor to consignee and more particularly, when they are also providing cargo handling service, with the help of other service providers, the service provided by them would fall within the ambit of cargo handling service, inasmuch as the help from other service providers does not change the nature of service that is being provided by them. It was also stated that shipping lines raise bills in the name of respondents and if any service tax has been charged, the respondents would be within their rights to take cenvat credit of the same in accordance with the rules and regulations. However, that would not change the nature of services rendered by them. 11. While considering the contentions advanced on both sides, the High Court has over-ruled the objection of maintainability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the respondents - original writ petitioners to the adjucating authority for adjudication pursuant to show cause notices which were issued without any legal basis, while allowing the writ petition filed by the respondents, quashed the notices dated 08.10.2015 and 30.09.2015 and further rejected Civil Application No.6679 of 2016 filed by the appellants raising the preliminary objection with regard to maintainability of the writ petition. 12. We have heard Sri K. Radhakrishnan, learned senior counsel for the appellants and Dr. A.M. Singhvi, learned senior counsel for the respondents. 13. Learned senior counsel, Sri Radhakrishnan, appearing for the appellants has submitted that the High Court has committed a serious error in entertaining the petition which itself is directed against the show cause notices. It is submitted that as the issue relates to classifiability for the purpose of taxation, more so, against the final order, appeal is provided to the Supreme Court, High Court ought not to have entertained the writ petition at all. It is further submitted that once the respondents undertook the responsibility of delivery of goods from consignor to consignee and more particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held by this Court, that writ petition is not to be entertained at show cause notice stage when the dispute relates to classification. 14. On the other hand, it is contended by Dr. Singhvi, learned senior counsel appearing for the respondents that there are absolutely no grounds to interfere with the well considered judgment of the High Court. It is submitted that the respondents are engaged in providing service of delivery of cargo from factories situated in Gujarat via Kandla/Mundra ports in Gujarat to Kochi, Mangalore and Tuticorin ports in Kerala through road and sea route. In order to provide service to the customers, respondent-companies take services of various intermediaries like lorry owners, shipping agencies etc. However, all the intermediaries raise the invoices in the name of aforesaid respondent companies only. It is submitted that the shipping agencies provide service to the respondent companies by raising invoice in their name and they issue a debit note of the same amount in the name of the customers. The respondent companies undertake the composite responsibility. It is submitted that the main activity of the respondents falls in the category of "goods transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra). 18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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