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TMI Blog2021 (3) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... rs.Hema Muralikrishnan, SSC JUDGMENT T.S.SIVAGNANAM, J. We have heard Mr.Joseph Prabakar, learned counsel for the appellant and Mrs.Hema Muralikrishnan, learned Senior Standing Counsel accepting notice for the respondent. 2. The appellant filed a writ petition in W.P.No.11796 of 2018 challenging the Order-in-Original dated 15.11.2017 passed by the respondent confirming the demand of service tax to the tune of ₹ 28,59,004/- including Education Cess, SHE Cess, demanding interest at the appropriate rate under Section 75 of the Finance Act, 1994 and imposing a penalty of ₹ 2,85,900/- under Section 76(1) of the Finance Act with an observation that the penalty payable shall be reduced to 25%, provided the service tax amount demanded is paid within 30 days from the date of receipt of the Order-in-Original and a penalty of ₹ 10,000/- was also imposed under Section 77(2) of the Act. 3. The writ petition was entertained and interim order was granted on 04.05.2018 following an earlier order in W.M.P.No.35103 of 2016 in W.P.No.41112 of 2016 dated 23.11.2016. The interim order was in force from 2018 onwards. The respondent-department did not file counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar [AIR 1969 SC 556] and also Nivedita Sharma vs. Cellular Operators Association of India Ors. [2011 (14) SCC 337]. In Thansingh Nathmal Ors. vs. Superintendent of Taxes, Dhubri Ors. [AIR 1964 SC 1419], the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person..... 15. ........The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner chooses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, which read as hereunder : (i) if there is unfairness in the action of the Statutory Authority; (ii) if there is unreasonableness in the action of the Statutory Authority; (iii) if perversity writs large in the action taken by the Authority; (iv) if the Authority lacks jurisdiction to decide the issue and (v) if there has been violation of the principles of natural justice, the Court will step in and exercise its jurisdiction under Article 226 of The Constitution of India. 8. Further, it would be highly beneficial to refer to the celebrated decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India [reported in 1997 (5) SCC 536] wherein it was held that the jurisdiction of the High Courts under Article 226 and that of the Hon'ble Supreme Court under Article 32 of The Constitution of India could not be circumscribed by the provisions of the Enactment (Central Excise Act) and they would certainly have due regard to the legislative intent evidenced by the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the Act. Further, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that the matter was adjourned and the appellant dealer submitted their objections on 16.10.2012 justifying their purchase of SAP software at concessional rate of tax against C Form Declarations. For the assessment year 2013-14, the appellant sent the reply dated 18.8.2014 and the order was passed on 16.9.2014. 14. It is worthwhile to point out that the order levying penalty for the assessment year 2008-09 is dated 30.1.2014. Though the dealer's objections were received on 16.10.2012, the Assessing Officer did not afford any opportunity of personal hearing to the appellant though more than one year had lapsed. This, in our considered view, is a serious issue because the dealer has taken a specific stand that the software is being used in the manufacture. Furthermore, the dealer's case is that in their registration certificate issued under the CST Act, as mentioned in Clause 9 in the annexure, computer software is also one of the items mentioned in their certificate of registration. Had an opportunity of hearing been granted to the dealer, especially when the Assessing Officer took more than one year to complete the assessment, the dealer would have explained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the consequential garnishee orders dated 07.10.2015 are set aside and the matters are remanded to the second respondent Assessing Officer to redo the entire exercise after affording an opportunity of personal hearing, during which, it will be open to the appellant to place their additional submissions both on facts and in law. No costs. Consequently, the above CMP is closed. 5. In the light of the above decision, we are constrained to interfere with the order passed in the writ petition. One more contention which appeal to us to interfere with the order is because identical issue is pending before the learned Single Bench in other writ petitions as well and the appellant herein is the petitioner in those writ petitions, namely W.P.Nos.24483 of 2016, 41112 of 2016 and 18838 of 2020. 6. Mr.Joseph Prabakar, learned counsel for the appellant submitted that the issue raised by the appellant in the writ petition is squarely covered in favour of the appellant by the decision of the Hon'ble Supreme Court in the case of State of West Bengal Vs. Calcutta Club Limited [(2019) 29 GSTL 545] , wherein it was held that incorporated clubs or associations are not liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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