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TMI Blog2022 (1) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... galore Development Authority, etc. The appellants contend that in the course of business, appellant No.1 was awarded a contract by Tata Housing Development Corporation Ltd., for construction of residential buildings in the Promont Hilltop residential project in Bengaluru. As per the terms of the contract between the parties and in the course of constructing such residential buildings, appellant No.1 was required to manufacture concrete mix at the site of the construction itself for exclusive use in such construction activity. The appellants claim that the concrete mix was duly manufactured by appellant No.1 at the site of the said residential building and was transported to the building site from the batching plant which was merely adjacent to the project site. Thus, there was also no removal of the concrete mix as it was captively used at the site of the residential project itself. 3. The manufacture of concrete mix at project site for the purpose of construction was exempt from the levy of excise duty in terms of Notification No.4/1997-CE, dated 1.3.1997. It appears, similar notifications came to be issued under the Act. The latest of such notification which is applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the said reply, respondent No.1 passed the impugned order in original dated 14.6.2019 confirming all the proposals made in the show cause notice barring the proposal to confiscate the goods in question. 7. The appellants submit that immediately after the receipt of the impugned order in original, the same was forwarded to their Tax Consultant with instructions to prepare, finalize and file appeal before the first appellate authority within the time prescribed under Section 35 of the Act. It is the contention of the appellants that they were under the bona fide belief that the appeal was filed against the order in original; On receipt of the impugned letter dated 3.9.2020 from respondent No.2 directing them to immediately pay the duty, interest and penalty levied in the impugned order in original, non filing of the appeal by their Tax Consultant is said to have come to their knowledge. By that time, the extended period for filing the appeal before the first appellate authority had already expired. In such circumstances, the appellants had approached the Writ Court seeking for a writ or direction quashing the impugned order in original passed by respondent No.1 or alternati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livery. The adjudicating authority has not examined the matter on all these aspects while arriving at the decision that the concrete mix manufactured at the site by appellant No.1 is RMC exigible to service tax. The appellants had prayed to remand the matter to the assessing officer setting aside the impugned order. Accordingly, seeks for setting aside the order passed by the Writ Court and to remand the matter to the adjudicating authority for fresh consideration to examine the process of manufacture of concrete mix in the light of the test propounded by the Hon'ble Apex Court in Larsen and Toubro, supra, vis- à-vis Circular dated 6.1.1998 11. Learned counsel Sri.Jeevan J Neeralgi, appearing for the Revenue supporting the impugned order would submit that no writ petition is maintainable against the order in original filed beyond the limitation period prescribed under the statute having regard to the law enunciated by the Hon'ble Supreme Court in the case of Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Ltd., and others, reported in (2017) 5 SCC 42 and Assistant Commissioner (CT) LTU, Kakinada and others v. M/s Glaxo Smith Kline Consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, if the assessee has approached a Writ Court, except in certain circumstances as enunciated in M/s Practice Strategic Communications India Private Limited v. The Commissioner of Service Tax, Bangalore, reported in ILR 2016 Kant. 4493, ordinarily no writ could be entertained. The relevant paragraphs 11, 13, 14, 15 reads thus; "11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by overstepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the Appellate Authority, as the case may be. In order to find out as to whether the case is fit for exercising of the power under Article 226 of the Constitution, we may record that as per the decision of the Delhi High Court, Rule 5, on the basis of which the original authority has passed the order for levying of tax is held to be ultra vires to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing process of these two, viz. concrete mix and RMC, merely for not utilizing the stone crushers and sand mill machine, no decision can be taken inasmuch as the manufacture of the product whether is concrete mix or RMC. There is no cavil on the proposition that RMC and concrete mix are two different commodities involving distinct process of manufacturing and that only concrete mix is eligible for the benefit of exemption notification. But what is the distinct process of manufacture has to be clearly discussed and reasons are to be assigned for such distinct process. Further, the manner of delivery also assumes significance. The adjudicating authority appears to have proceeded to analyze on the plant and machinery set up for its manufacture in detail, but not in the light of the notification issued by the CBIC/Union Government vis- à-vis the dictum laid down by the Hon'ble Apex Court in Larsen and Toubro, supra, in its entirety. 17. In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative remedy of appeal available under the Act, no exception can be found with the Writ Court in rejecting the writ petition as not maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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