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Madras High CourtWP(MD)/17046/2021allowed

Jeyasingh.G, Proprietor Of M/S. Sri Paulthai Lorry v. The Joint Commissioner

2024-06-26Honourable Mr Justice C. Saravanan8 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.04.2024

CORAM:

THE HONOURABLE MR.JUSTICE C.SARAVANAN and W.M.P.(MD) No.13977 of 2021 G.Jeyasingh ... Petitioner /vs./ 1.The Joint Commissioner, Office of the Joint Commissioner of CGST and Central Excise, Central Revenue Building, Tractor Road, NGO A Colony, Tirunelveli 627 007.

2.The Central Warehousing Corporation, No.4, North Avenue, Srinagar Colony, Saidapet, Chennai 600 01.

(R2 has been impleaded vide order dated 26.06.2024) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, to call for the records of Order in Original No. 24/JC/ST/2018 dated 25/09/2018 and quash the same. 1/8

For Petitioner : Mr.S.Venkatachalam For Respondent : Mr.R.Nandhakumar Senior Standing Counsel

ORDER

The petitioner is before this Court against the impugned Order in Original No.24/JC/ST/2018 dated 25.09.2018.

2.By the impugned order, the respondent has confirmed the demand proposed in the show cause notice No.05/JC/ST/2018 dated 21.04.2018 bearing Ref.C.No.V/ST/15/10/2018-Adjn.

3.Operative portion of the impugned order reads as under: "ORDER i) I demand an amount of Rs.52,04,404/- (Rupees Fifty Two Lakh Four Thousand Four Hundred and Four only) being the Service Tax. Edu. cess and Sec. & Hr Edu. cess for the period from 01.07.2012 to 16.02.2014, under the Section 73(2) of the Finance Act, 1994 read with Section 72 of the Act;

ii) 1 demand appropriate interest under Section 75 of the Act on the amount demanded at Sl.No.(i) above;

iii) I impose penalty of Rs.79.000/- (Rupees Seventy Nine Thousand Only) under Section 77(1)(c) of the Act; 2/8

iv) I impose a penalty of Rs.40,000/-(Rupees Forty Thousand only) under Section 77(2) of the Finance Act, 1994; v) I impose a penalty of Rs.52,04,404/-(Rupees Fifty Two Lakh Four Thousand Four Hundred and Four Only) under Section 78 of the Finance Act, 1994. If the amount of service tax as determined above along with interest thereon is paid within thirty days of the date of communication of this order, the amount of penalty liable to be paid shall be reduced to twenty-five per cent of the penalty imposed, subject to the condition that such reduced penalty is also paid within the period so specified."

4.Ipso facto, the petitioner has obtained a certificate from the Central Warehousing Corporation, for whom the petitioner propose to implead as second respondent in W.M.P.(MD) No.16445 of 2021 in W.P.(MD) No.17046 of 2021. 5.By letter dated 27.03.2019, the Central Warehousing Corporation has issued omnibus letter addressed to the Service Tax Commissionerate in respect of the services provided by the petitioner, which reads as under: 3/8

6.The writ petition is opposed by the learned Senior Standing Counsel for the respondents on the ground that the writ petition is devoid of merits. It is submitted that the impugned order is dated 25.09.2018, whereas the writ petition has been filed only on 17.09.2021.

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7.It is therefore submitted that the demand that was proposed in the show cause notice No.05/JC/ST/2018 dated 21.04.2018 bearing Ref.C.No.V/ST/15/10/2018-Adjn, which stood crystallized vide impugned order dated 25.09.2018 cannot be disturbed. It is submitted that at this distant point of time, neither a writ petition is maintainable on account of latches nor an appeal before the Appellate Commissioner can be permitted, in view of the decision of the Hon'ble Supreme Court in M/S.Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others reported in (2008) 3 SCC 70. 8.It is submitted that even otherwise the writ petition at this stage cannot be entertained in the light of the decision of the Hon'ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Vs.

Glaxo Smith Kline Consumer Health Care Limited reported in 2020 SCC Online SC 440. 9.Having considered the submissions made by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents and having considered the aforesaid letter dated 27.03.

Warehousing Corporation/the second respondent herein, I am inclined to set aside the impugned order and remit the case back to the first respondent to pass a fresh order in the light of the aforesaid letter of the second respondent dated 27.03.2019.

10.It is noticed that the petitioner has also not given proper reply to the show cause notice issued to the petitioner earlier. Considering the same, the impugned order, which stands quashed, shall be treated as addendum to the show cause notice No.05/JC/ST/2018 dated 21.04.2018 bearing Ref.C.No.V/ST/15/10/2018-Adjn. The petitioner shall file a consolidated reply within a period of 30 days from the date of receipt of a copy of this order. The first respondent shall pass a fresh order on merits and in accordance with law within a period of 3 months thereafter.

11.Considering the fact that the petitioner has also been lackadaisical in approaching this Court, the petitioner shall deposit 25% of the disputed tax as condition for the first respondent to pass fresh orders on merits. It is made clear that unless the aforesaid amount is deposited within a period of 30 days from the 6/8

date of receipt of a copy of this order by the petitioner in cash, the first respondent is at liberty to proceed against the petitioner in accordance with law. 12.With the above directions, the Writ Petition stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed. Index : Yes / No 26.04.2024 Internet : Yes / No mm 7/8

C.SARAVANAN, J.

mm 26.04.2024 8/8