Calcutta High Court
Commissioner Of Service Tax vs M/S. Simplex Infrastructure Ltd. ... on 23 August, 2022
APO No. 15 of 2019
with
WPO No. 1114 of 2009
IN THE HIGH COURT OF CALCUTTA
In appeal from its
CONSTITUTIONAL WRIT JURISDICTION
CIVIL APPELLATE JURISDICTION
Commissioner of Service Tax, Kolkata
Versus
M/s. Simplex Infrastructure Ltd. & Ors.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice SUBHENDU SAMANTA
Date: 23rd August 2022
Appearance:
Mr. K. K. Maiti, Advocate
for the appellant
Mr. J. P. Khaitan, Sr. Advocate
Ms. Nilanjana Banerjee, Advocate
for the respondents
The Court: This is an appeal from a judgment and order dated
12th December 2018 preferred by the Commissioner of Kolkata South
CGST and CX, Kolkata. It was made by a learned single judge of this
court in exercise of his writ jurisdiction in WP No. 1114 of 2009
connected with GA no. 2368 of 2018 (M/s. Simplex Infrastructures Ltd.
& Anr. vs. Commissioner of Service Tax Commissionerate, Kolkata &
Ors.). By the impugned judgment and order the show cause-cum-
demand notice dated 7th September 2009 was quashed. "All
consequential steps" taken further to the show cause-cum-demand
notice including the order in original dated 6th February 2012 were also
quashed.
The plain and simple question which arose before this court was
whether the appellant had the jurisdiction to issue the show cause and
demand notice in question. The show cause notice alleged that the four
works contract between the parties entered into between 10th
September 2004 and 15th June 2005 were exigible to service tax.
Service tax was demanded from the respondent.
The learned judge allowed the writ application on the admitted
facutal position that the contract between the parties was an indivisible
works contract. According to the decision of the Supreme Court in
Commissioner of Central Excise and Customs, Kerala vs. Larsen &
Toubro Limited (2016) SCC vol. 1 page 170, at the material point of time
an indivisible works contract was not exigible to service tax.
The learned judge has specifically noted in the judgment that
there was no dispute between the parties with regard to the fact that
the contract was indivisible. In fact Mr. Khaitan, learned senior
advocate for the respondent submitted that this position was accepted
by the appellant in the show cause notice and in the affidavit-in-
opposition to the writ petition and was never disputed elsewhere. The
learned single judge, therefore, rightly observed that there was "no
dispute with regard to the classification of the goods".
On these admitted facts the show cause notice alleging that the
respondent was liable to pay service tax and demanding it from them
was ex facie without jurisdiction. If the show cause notice is without
jurisdiction, the jurisdiction of this court under Article 226 of the
Constitution of India can be invoked by an injured party straightway
without resorting to any alternative remedy. Hence we do not accept the
contention of Mr. Maiti, learned advocate for the appellant that the
court should have relegated the respondent to the alternative remedy of
adjudication of the show cause before a departmental officer.
Since the facts are admitted it could not be said that this court
had entertained disputed facts in a writ application. If the facts are
admitted and a public law element is involved the court under Article
226 has jurisdiction to entertain the issues between the parties.
For these reasons, we find no merit in this appeal. We dismiss it,
affirming the impugned judgment and order dated 12th December 2018.
No order as to costs.
(I. P. MUKERJI, J.)
(SUBHENDU SAMANTA, J.)
R. Bose
