Bombay High Court
Ms Suman Construction Through Its ... vs Union Of India Through Its Secretary And ... on 14 November, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:31364-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6467 OF 2025
M/s. Suman Construction
Through its Partner
Mr. Kishor Nilkanth Potdar,
Age : 59 years, Occ:- Contractorship
R/at: - Swapankanksha, Near Ganesh Temple
Vidya Nagar, Parbhani, Dist: - Parbhani
Maharashtra - 431 401 ----PETITIONER
VERSUS
1] Union or India,
through its Secretary,
Department of Financial Services,
Ministry of Finance,
Jeevan Deep Building,
Sansad Marg, New Delhi- 110001.
2] The Commissioner CGST Central Excise,
N-5, Town Center, CIDCO,
Aurangabad-431003.3]
3] Joint Commissioner,
CGST & Central Excise, N-5,
Town Center, CIDCO,
Aurangabad-431003.
4] The Additional Commissioner,
CGST & CEX, Nagpur-1,
Commissionerate Nagpur.
5] The Assistant/Deputy Commissioner
(R & T), CGST & Central Excise,
Aurangabad.
6] The Superintendent,
CGST & Central Excise,
City Range-3, Aurangabad,
Urban Division. ----RESPONDENTS
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Mr. J. N. Singh, Advocate for petitioner
Mr. N. T. Tribhuwan, Central Government Counsel for respondent No. 1
Mr. P. P. Dawalkar a/w Mr. P. P. Kothari, Advocate for respondent Nos. 2
to 6
CORAM : Smt. Vibha Kankanwadi &
Hiten S. Venegavkar, JJ.
RESERVED ON : 04th November, 2025
PRONOUNCED ON : 14th November, 2025
JUDGMENT (PER : Hiten S. Venegavkar, J) :
-
1. The present writ petition preferred under Article 226 and 227
of the Constitution of India. The petitioner, a government-registered civil
contractor, has approached this court seeking a declaration that the
common order dated 20.03.2023, passed by the Additional
Commissioner, CGST and Central Excise, Nagpur-1 for the financial years
2015-2016 and 2016-2017, is non-est and bad in law. The petitioner
further seeks a declaration that in view of Notification No. 25/2012,
dated 20.06.2012, issued by the Ministry of Finance under Section 93 of
the Finance Act, 1994, (for short "the Act") the works of construction of
roads executed for government departments are exempted from the levy
of service tax. The petitioner also prays for quashing and setting aside
the order dated 19.03.2025, passed by the Joint Commissioner, CGST
and Central Excise, Aurangabad, rejecting his application for rectification
of mistake under Section 74 of the Act.
2. The factual matrix is that the petitioner is engaged
exclusively in executing civil construction contracts for various
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departments of the Government of Maharashtra, primarily for the
construction of roads through the Public Works Department. The
petitioner asserts that, in light of the Ministry of Finance Notification No.
25/2012-ST, dated 20.06.2012, services relating to construction of roads
for the Government are wholly exempt from service tax. Consequently,
the petitioner has not registered under the Act for service tax purposes.
3. According to the petitioner, on 21.01.2021, the Jurisdictional
Range Superintendent of Central Excise issued a letter seeking details of
the petitioner's turnover for financial year 2015-16 based on data
obtained from MAHAVAT records. A show-cause notice thereafter was
issued, demanding service tax on the assumption that the petitioner
rendered taxable services. The petitioner replied on 12.05.2022,
submitting income tax returns, Form 26 AS, balance sheets and
certificate issued by the Public Works Department confirming that the
works executed were related to government road construction. Despite
this, the Deputy Commissioner confirmed the demand by order dated
24.03.2023 The petitioner preferred an appeal under section 85 of the
Act before the Commissioner (appeals), CGST and CEX, Nagpur-1, which
was partly allowed by order dated 26.07.2024. The Appellate Authority
confirmed a limited service tax demand of Rs 30,272/- with
corresponding penalties under sections 77 and 78 of the Act.
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4. The petitioner submits that notwithstanding the finality
attained in respect of Financial Year 2015-2016, the Additional
Commissioner again issued an order dated 20.03.2023, imposing service
tax for Financial Year 2015-2016 and 2016-2017. The petitioner
therefore, on 02.02.2025, moved an application before various
authorities, including the Joint Commissioner, CGST, seeking rectification
of the mistake under section 74 of the Act specifically in respect of 2015-
16 period, which had already been adjudicated upon. The petitioner's
contention is that the re-imposition of service tax for Financial Year
2015-16, after the appellate order had attained finality, is impermissible
in law and violates the doctrine of merger as recognized by the Hon'ble
Supreme Court in Chandi Prasad and others vs. Jagdish Prasad and
others 2004(8) SCC 724, Surinder Pal Soni vs. Sohan Lal (Dead)
through Legal Representatives 2020 (15) SCC 771 and V. M.
Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax
2000 (5) SCC 373. The petitioner thus asserts that the impugned
order of the Joint Commissioner rejecting his rectification application is
arbitrary, illegal and contrary to the principles of natural justice.
5. Per contra, the Learned Counsel appearing for the
respondent authorities contains that the writ petition is not maintainable
in view of the alternate statutory remedy available to the petitioner
under section 85 of the Act by way of appeal before the Appellate
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Tribunal. The respondents further submit that the petitioner's application
for rectification of mistake under section 74 of the Act was misconceived
and not maintainable in law. The said provision, according to the
respondents, is limited in scope and applies only to mistakes apparent on
the face of record, not to re-adjudication of factual disputes or re-
assessment of liability. It is also the respondents' contention that the
petitioner failed to file an appeal within the limitation period prescribed
under section 85 of the Act and in order to circumvent such limitation,
resorted to filing an application under section 74 of the Act. The Joint
Commissioner, in the impugned order dated 19.03.2025, rightly held that
he could not rectify an order passed by another authority, namely the
Additional Commissioner, Nagpur-1. It is further argued that the
petitioner's grievances pertain to factual issues which cannot be
entertained in rectification proceedings and the writ petition being devoid
of merit deserves dismissal. Having heard both the learned counsels for
the parties and having perused the records, the principal question before
this court is whether the application dated 02.02.2025 filed by the
petitioner can be treated as one under section 74 of the Act and whether
the Joint Commissioner erred in rejecting it.
6. Section 74 of the Act empowers an Adjudicating Authority to
amend or rectify its order to correct a mistake apparent from the record
within two years of passing the original order. The phrase "mistake
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apparent from the record" has been judicially interpreted to mean a
manifest, obvious or self-evident error, error that does not require
elaborate reasoning or long-drawn arguments. Applying the aforesaid
scope of section 74 of the Act which in our view is confined to correction
of patent errors which may be clerical, arithmetical or legal and has to be
noticed from the face of the record and it is not intended to reopen
concluded findings or enable substitution of one view for another.
7. Upon perusal of the petitioner's application dated
02.02.2025, it is evident that the petitioner has challenged the
imposition of service tax on the ground that the construction works
executed for government departments are exempted under notification
No. 25/2012 - service tax and that the order of the Additional
Commissioner dated 20.03.2023 was passed without notice. The
petitioner also asserts that the prior appellate order has set aside liability
for Financial Year 2015-2016. These are substantive grounds and not
clerical or patent errors. The application, therefore, is in the nature of an
appeal or review/revision rather than a rectification request under
section 74 of the Act.
8. Moreover, section 74 sub-clause 3 of the Act expressly
provides that rectification must be undertaken by the very authority
which passed the order sought to be rectified. In the present case, the
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impugned order dated 20.03.2023 was passed by the Additional
Commissioner, CGST and CEX, Nagpur-1. The petitioner, however,
addressed the rectification application to multiple authorities and the
same came to be decided by the Joint Commissioner, CGST, Aurangabad,
who had no jurisdiction to rectify an order passed by another authority.
The Joint Commissioner rightly observed in the last two paragraphs that
he cannot modify or correct the order of the additional commissioner.
9. The argument of the petitioner invoking the doctrine of
merger also cannot aid him at this stage. The appellate order dated
26.07.2024 admittedly pertained to an earlier adjudication for Financial
Year 2015-16. The impugned order of 20.03.2023 covers both Financial
Year 2015-16 and Financial Year 2016-17 and arises from a separate
proceedings. Whether both proceedings relate to identical issues or
distinct taxable services would require factual verification, which is
beyond the limited scope of rectification or writ jurisdiction under Article
226 when an efficacious appellate remedy exists. It is also necessary to
be noted that the Joint Commissioner, CGST, Aurangabad, while
considering the application of the present petitioner has given
considerable thought to Section 74 of the Act and have proceeded to
decide the application even after looking into the order passed by the
Appellate Authority in connection with the financial service tax imposed
for Financial Year 2015-16 in the earlier round of litigation. Even after
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applying his mind to the order of the Appellate Authority, he has come to
a conclusion that it is not possible for him to under Section 74 of the Act
to hold that though the computation of service tax is for the common
period but whether the issues involved in both the orders are same or
different. On this basis, he has come to a conclusion that as the order
has been passed by the Additional Commissioner, CGST, he is not in a
position to consider the application under Section 74 of the Act and
rectify or modify the order passed by another authority.
10. This Court also finds merits in the submission of the
respondent that the petitioner's appropriate remedy against the order
dated 20.03.2023 lies in filing an appeal under Section 85 of the Act
before the Appellate Authority. The writ jurisdiction is discretionary and
cannot ordinarily be invoked when an alternate statutory remedy is
available unless there is a clear violation of natural justice or lack of
jurisdiction which is not established by the petitioner in the present case.
11. In view of the foregoing discussion, this Court is of the
considered opinion that the petitioner's application dated 02.02.2025,
was not a genuine rectification application under Section 74 of the Act
but rather an attempt to reopen adjudicated issues through an improper
forum. The Joint Commissioner, CGST and Central Excise, Aurangabad
has rightly observed that he is not able to rectify an order passed by the
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Additional Commissioner, Nagpur-1. The impugned order dated
19.03.2025 does not suffer from any illegality, perversity or violation of
natural justice warranting interference under Article 226 of the
Constitution of India. As far as original order dated 20.03.2023 passed
by Additional Commissioner CGST and CEX Nagpur-1 is concerned,
petitioner is at liberty to adopt alternate remedy as available in law.
12. Accordingly, the writ petition stands dismissed.
13. No orders as to cost.
(Hiten S. Venegavkar, J.) (Smt. Vibha Kankanwadi, J.)
B. S. Joshi
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