Dodla International Ltd vs The Commissioner Of Central Tax ...
2021 Latest Caselaw 1262 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                       WP(C).No.927 OF 2021(M)


PETITIONER:

               DODLA INTERNATIONAL LTD
               NOW KNOWN AS M/S. LULU HOSPITALITY LTD, T.C NO.
               28/2225, C.V RAMAN PILLAI ROAD, THYCAUD,
               THIRUVANANTHAPURAM - 695014.

               BY ADV. SRI.GEORGE JOHNSON

RESPONDENTS:

      1        THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE
               P.B.NO. 13, GST BHAVAN, PRESS CLUB ROAD,
               THIRUVANANTHAPURAM - 695001,

      2        THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE
               (AUDIT)
               CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI -
               682018.




               SC,CBEC- SRI. SREELAL N.WARRIAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.927 OF 2021(M)

                                      2

                                JUDGMENT

Dated this the 13th day of January 2021

By this petition, the petitioner has challenged the order dated

22/09/2020 at Ext.P1 to the petition.

2. Heard the learned counsel for the petitioner at sufficient

length of time. The learned counsel for the petitioner argued that

after introduction of CGST Act, 2017 by virtue of Section 174 thereof,

Chapter 5 stands repealed and therefore, the 2 nd respondent ought not

to have assigned the adjudication to the 1 st respondent and therefore

the impugned order is wholly without jurisdiction.

3. The learned counsel further argued that after repeal of the

current statute all subordinate legislation evokes. My attention is drawn

to paragraph 7.5 of the impugned order to demonstrate that the same

is illegal.

4. The learned counsel for the petitioner further urged that

though the decision cited by the learned counsel for the petitioner were

taken note of by the adjudicating authority, the same were not

considered in its true perspective while passing the impugned order.

5. The learned counsel for the petitioner relied on the judgment

in the matter of Murli Realtors Pvt. Ltd vs. Commissioner of

Central Excise, Pune reported in 2015 (37) S.T.R. 618. WP(C).No.927 OF 2021(M)

6. It is urged that the security deposit is received towards

recovery of damages if any caused to the lease property by the

assessee and it is not towards any provision of taxable service.

Paragraph 6.1 of the said judgment was pressed into service to

demonstrate that there is no provision in the Service Tax Law for

giving notional interest on security deposit taken as a consideration

for leasing out immovable properties.

7. As against this, the learned standing counsel appearing

for the respondent submitted that even if the contentions so raised

by the learned counsel for the petitioner are accepted as they are,

then also at the most, it can be said that the impugned original

order is erroneous, but the same cannot be a subject matter of writ

petition before this Court. The learned senior counsel argued that

in view of the alternative and most efficacious remedy of filing an

appeal against the impugned order, the petition deserves to be

dismissed.

8. I have considered the submissions so advanced and

perused the impugned order.

9. There cannot be any doubt that the impugned order is an

appealable order and statutory appeal under Section 86(1) of the

Finance Act, 1994 lies before the Customs Excise and Service Tax WP(C).No.927 OF 2021(M)

Appellate Tribunal, Bangalore.

10. In the wake of availability of alternate remedy, this Court

can entertain the writ petition in a very limited arena. For

entertaining writ petition in the wake of alternate remedy, the

petitioner has to demonstrate that the order impugned in the writ

petition was passed in defiance of the fundamental principles of

judicial procedure or in utter violation of principles of judicial

justice. Perusal of the impugned order shows that the assessing

authority has considered the contentions regarding lack of

jurisdiction in para 7.5 of the impugned order and has recorded a

finding against the petitioner. It is also seen from the impugned

order that the judgments cited by the petitioner were taken note of

while passing the impugned order. Therefore, it cannot be said that

the impugned order is passed violating the principles of natural

justice or that the same is contrary to the fundamental principles of

judicial procedure, warranting entertainment thereof despite

availability of alternate statutory remedy.

In the light of these facts, it cannot be said that despite

availability of alternate remedy in filing the appeal, the writ petition

needs to be entertained. The writ petition as such is disposed of

with liberty to the petitioner to avail alternate remedy. If the WP(C).No.927 OF 2021(M)

petitioner chooses to file statutory appeal, the appellate authority

may consider pendency of this writ petition for condonation of

delay, if that provision is available in law.

Sd/-

                                                 A.M.BADAR

Nsd                                                JUDGE
//true copy//
PA to Judge
 WP(C).No.927 OF 2021(M)




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF IMPUGNED ORDER NO. TVM/EXCUS-
                     000-COM-08-2020-21 DATED 21.09.2020.

EXHIBIT P2           TRUE COPY OF MEMORANDUM OF UNDERSTANDING
                     DATED 11.08.2009.

EXHIBIT P3           TRUE COPY OF SHOW CAUSE NOTICE NO.13/19ST
                     DATED 18.04.2019 ISSUED BY THE 2ND
                     RESPONDENT.

EXHIBIT P4           TRUE COPY OF THE REPLY DATED 20.05.2019
                     FILED BY THE PETITIONER.