M/S Bhawani Marketing Pvt. Ltd vs Union Of India And 4 Ors
2024 Latest Caselaw 3963 Gua

Gauhati High Court

M/S Bhawani Marketing Pvt. Ltd vs Union Of India And 4 Ors on 5 June, 2024

Author: Soumitra Saikia

Bench: Soumitra Saikia

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GAHC010102762024




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WP(C)/2886/2024

         M/S BHAWANI MARKETING PVT. LTD.
         A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
         COMPANIES ACT, 1956,
         AND HAVING ITS REGISTERED OFFICE AT SHIMA PLAZA, 3RD FLOOR,
         ULUBARI CHARIALI, GUWAHATI, ASSAM- 781007
         AND IN THE PRESENT PROCEEDINGS IS BEING REPRESENTED BY ONE OF
         ITS DIRECTOR
         SRI CHHOTE NARAIN SINHA.



         VERSUS

         UNION OF INDIA AND 4 ORS.
         REPRESENTED BY THE SECRETARY,
         MINISTRY OF FINANCE,
         DEPARTMENT OF REVENUE,
         NORTH BLOCK, CENTRAL SECRETARIAT,
         NEW DELHI- 781006.

         2:THE COMMISSIONER (APPEALS)
          CGST
          CENTRAL EXCISE AND CUSTOMS
          HAVING ITS OFFICE AT 3RD FLOOR

         GST BHAWAN
         KEDAR ROAD
         MACHKHOWA

         GUWAHATI- 781001.

         3:THE DEPUTY COMMISSIONER (AUDIT)
          GST AND CENTRAL EXCISE
         AUDIT COMMISSIONERATE
                                                                            Page No.# 2/4

             GST BHAWAN

            KEDAR ROAD
            MACHKHOWA
            GUWAHATI- 781001.

            4:THE ASSISTANT COMMISSIONER
             GST AND CENTRAL EXCISE
             GUWAHATI-I DIVISION
             2ND FLOOR
             GST BHAWAN

            KEDAR ROAD
            MACHKHOWA
            GUWAHATI- 781001

Advocate for the Petitioner   : MR. P DAS

Advocate for the Respondent : SC, GST




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                            ORDER

05.06.2024 Heard Mr. P. Das, leaned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, GST.

2. This petition challenges the order in original dated 28.03.2022 passed by the Deputy Commissioner, Audit against the writ petitioner whereby demand of Service Tax including Cesses amounting to Rs.7,66,860/- has been confirmed for the financial year 2014-15 under Section 73(2) of the GST Act and with a penalty of Rs. 1000/- under Section 77(2) and a further penalty of Rs. 7,66,860/- imposed on under Section 78 of the Finance Act, 1994.

3. The learned counsel for the petitioner submits that against this order, an appeal was filed before the Commissioner of Appeal and the same also came to be dismissed on the ground of limitation by order dated 13.11.2023.

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4. The petitioner has also put to challenge the notices for recovery of government dues issued on 02.02.2024. The grievance of the writ petitioner is that the services rendered by the writ petitioner which have been found under the realm of Service Tax by the Assessing Authority is actually exempted under the Mega Exemption Notification No. 25/12 dated 20.06.2012.

5. It is submitted that under this Mega Exemption Notification, the services rendered by the writ petitioner were exempted and therefore for the period under questioned, the impugned order passed by the Assessing Officer is contrary to the notification issued by the Government of India and therefore no recovery can be made. He submits that this orders passed by the Assessing authority being contrary to the notification itself, the impugned order is required to be interfered with, set aside and quashed. That apart, this fact not having been considered by the appellate authority, the impugned order of the Commissioner of Appeal also is required to be interfered with and consequently, the impugned order of recovery of Government dues is also required to be interfered with.

6. The learned Standing Counsel, GST submits that this writ petition is not maintainable as a further appeal before the CSAT was required to be filed by the petitioner under the provision of 86 of the Finance Act. However, the petitioner has not gone for further appeal and the same is contrary to the law laid down by the several judgments of the Apex Court. He therefore question of maintainability of the writ petition.

7. Issue Notice, Returnable in four weeks.

8. Since the learned Standing counsel appears on behalf of all the respondents, Notices are waived. However, extra copies be furnished within one week from today.

9. The learned Standing Counsel, GST will complete the instructions and file necessary counter if so advised.

10. Matter be listed posted after four weeks to be listed on 17.07.2024.

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11. Till the next returnable date, the demand for recovery shall remain stayed.

12. The question of maintainability will be left open.

Comparing Assistant