M/S. Gujarat Technological ... vs Union Of India
2021 Latest Caselaw 363 Guj

        C/SCA/489/2021                              ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 489 of 2021
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          M/S. GUJARAT TECHNOLOGICAL UNIVERSITY
                           Versus
                      UNION OF INDIA
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Appearance:
AISHWARYA R CHIRLA(9713) for the Petitioner(s) No. 1
GUPTA LAW ASSOCIATES(9818) for the Petitioner(s) No. 1
PARITOSH R GUPTA(7583) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR. JUSTICE ILESH J. VORA

                         Date : 12/01/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. By this writ application under Article 226 of

the Constitution of India, the writ applicant -

a University established under the provisions of

the Gujarat Technological University Act, 2007

(for short "GTU Act, 2007") has prayed for the

following reliefs:

"(A) That Your Lordships may be pleased to issue a writ of Mandamus or a writ of Certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 30.07.2020 passed by Commissioner of Central Goods and Service Tax & Central Excise, Ahmedabad (Annexure­A);

(B) Your Lordships may be pleased to pass appropriate order or direction pending the hearing and final disposal of this petition, restraining the Respondents by themselves, their officers, subordinates, servants and agents to refrain from acting upon or taking

C/SCA/489/2021 ORDER

any further steps or proceedings in pursuance of and/or in implementation and/or in furtherance of the impugned order dated 30.07.2020 passed by Commissioner of Central Goods & Service Tax & Central Excise, Ahmedabad (Annexure "A");

(C) An ex parte ad­interim relief in terms of paragraph 16 (D) above may kindly be granted."

2. We have heard Mr.Paritosh Gupta, the learned

counsel appearing for the writ applicant.

3. We take notice of the fact that the impugned

order in original passed by the Commissioner,

Central Goods & Services Tax & Central Excise,

Ahmedabad North, dated 30.07.2020 is an

appealable order. An appeal under Section 86 of

the Finance Act, 1994 lies before the Customs,

Excise and Service Tax Appellate Tribunal,

Ahmedabad. We inquired with Mr. Gupta, as to why

the writ applicant should not be relegated to

exhaust the statutory alternative remedy of

appeal available to him before the Tribunal. Mr.

Gupta would submit that, one of the contentions

raised in this writ application is with regard

to the discrimination being violative of Article

14 of the Constitution. This aspect of the

matter may not be appreciated or may not fall

C/SCA/489/2021 ORDER

within the jurisdiction of the Appellate

Authority. In such circumstances according to

Mr. Gupta, the writ applicant has thought fit

not to file the statutory appeal, but come

before this High Court by invoking its writ

jurisdiction under Article 226 of the

Constitution.

4. In the aforesaid context, Mr. Gupta invited the

attention of this Court to the averments made in

para 14J of the writ application. Para 14J reads

thus :

"J. The petitioner further submits that the order passed by the authority is even otherwise illegal inasmuch as the authority has unlawfully brushed aside decision and findings of Commissioner (Appeals) rendered in the case of similarly situated university. During the course of investigation and adjudication, the petitioner has brought on record order dated 29.11.2018 of the Commissioner (Appeals) rendered in the case of M/s. Doctor Hari Singh Gour Vishwavidyalay, Sagar holding that activity of granting affiliation was not chargeable to service tax. A copy of the said order is annexed hereto and marked as "ANNEXURE­H". It was also pointed out that the said proceedings were initiated in respect of same period of time and the order of the Commissioner (Appeals) was accepted by the department and was not carried forward in appeal. The authority however after considering the said decision has brushed it aside merely on the basis that the decision was rendered considering Board's circular dated 28.01.2009 which was issued prior to the introduction of the negative list. The petitioner submits that perusal of the said order would show that the said circular was referred to only highlight the underlying

C/SCA/489/2021 ORDER

intention of the Government all throughout the imposition of service tax on education related services and the same was not the entire basis for extending the benefit. Perusal of the order in respect of the said party would show that reference to the aforesaid Board's Circular was a passing reference and was not the entire basis for holding that the activity in question was not chargeable to service tax. The other reasoning and finding of the authority clearly discussed in the order were not even considered by the respondent authority while holding the issue against the petitioner. The petitioner further submits that against the said order of the Commissioner (Appeals), to the best of the knowledge of the petitioner, the department has not filed any further appeal and the same has been accepted on merits. In such circumstances, the authority ought not to have brushed aside the said decision and Should have appreciated the effect of acceptance of the said order by the department. It is submitted that levy of service tax is under a Central Act and therefore, the same is to be administered all throughout the Country uniformly on all similarly situated entities and failure to implement such law in a consistent and uniform manner would lead to blatant discrimination prohibited under law. In this regard, reference may be made to judgment of this Hon'ble Court in the case of Darshan Boardlam Ltd. vs Union of India reported in 2013 (287) ELT 401 (Guj.) wherein this Hon'ble Court has not only held that the Circulars issued by the Board are binding on the authorities but have also held that implementation of Central levy has to be consistent and uniform all throughout the Country. It is further held that if the authority of certain State or Commissionerate refuses to allow benefit of exemption to manufacturers located in that State or Commissionerate but other manufactures located elsewhere are allowed such exemption, then the same would be in violation of Article 14 as also Article 19 (1) (g) of the Constitution of India.

In the present case also, not only has the respondent authority brushed aside binding Circular issued by the Board but has also brushed aside decision of the Commissioner (Appeals) extending the benefit to other university who was similarly situated. The authority has also overlooked the pertinent fact that the said order of Commissioner (Appeals) has, to the best of information of the

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petitioner, not been challenged by the department and has been accepted on merits. This being the case, the stand of the department on the said issue had reached finality and the authority should have followed the same and extended the benefit even to the petitioner situated here in Gujarat. The petitioner submits that such deviation on part of the authority is clearly illegal and in gross violation of principles enshrined under Article 14 and 19 of the Constitution of India. The petitioner therefore, submits that the order passed by the authority suffers from vice of arbitrariness and is even otherwise, not in line with the underlying intention of the Government concerning levy of service tax of educational services."

5. Mr. Gupta also invited the attention of this Court to the order passed by the office of the Commissioner (Appeals), CGST, Customs & Central Excise, Bhopal, dated 29.11.2018 in an identical matter like the one at hand. According to Mr. Gupta, the Department has accepted the order passed by the office of the Commissioner (Appeals) referred to above and in that view of the matter, the impugned order in the present case could not have been passed.

6. We are of the opinion that, we should not entertain this writ application as the writ applicant has an alternative remedy of filing a statutory appeal against the impugned order­in­ original under Section 86 of the Finance Act, 1994. We are unable to appreciate the contention raised by Mr. Gupta that the Ground No.14J referred to above, may not be appreciated by the Appellate Authority or may not fall within his jurisdiction to consider the same.

          C/SCA/489/2021                                             ORDER




  7. The     Appellate         Authority            is    well     within           its

jurisdiction to consider the Ground No.14 J as raised in the memorandum of the writ application. The Appellate Authority is also obliged to consider the order passed by the Commissioner (Appeals), CGST, Customs & Central Excise, Bhopal, in an identical litigation.

8. In view of the aforesaid, we dispose of this writ application without expressing any opinion on the merits of this case by relegating the writ applicant to avail the statutory remedy of appeal before the Appellate Authority under Section 86 of the Finance Act, 1994. If the writ applicant deems fit to file an appeal before the Appellate Authority, then the issue of limitation if at all arises, the same may be considered keeping in mind that the writ applicant thought fit to first approach this High Court. In other words, the issue of limitation be appreciated accordingly.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J) SUCHIT