Kerala High Court
Swadeshi Chitties Pvt Ltd vs Union Of India on 16 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
WP(C) NO. 1253 OF 2019
PETITIONER:
SWADESHI CHITTIES PVT LTD.,
TC-18/1879, 1ST FLOOR,
ADAM BAZAR, THRISSUR-680001,
REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.
LINDONS C.DAVIS
SMT.E.U.DHANYA
SRI.RAJITH DAVIS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
NORTH BLOCK, NEW DELHI-110 001.
2 CENTRAL BOARD OF EXCISE AND CUSTOMS,
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, 156,
NORTH BLOCK 1, NEW DELHI-110001.
3 CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS,
CENTRAL REVENUE BUILDING, I.S.PRESS ROAD,
COCHIN-682018.
4 ASSISTANT COMMISSIONER OF CENTRAL EXCISE AND
SERVICE TAX, THRISSUR DIVISION,
ST NAGAR, THRISSUR-680001.
BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL
BOARD OF EXCISE & CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1253 OF 2019
2
BECHU KURIAN THOMAS, J
..............................................
W.P.(C) No.1253 of 2019
.....................................
Dated this the 16 th day of February, 2022
JUDGMENT
Petitioner has approached this Court with the
following reliefs:
i) to issue a writ of certiorari or any other appropriate writ,
order or direction, quashing Ext.P1 order as unjust illegal and
unsustainable.
ii) to declare that the respondents are not entitled to demand
service tax for the period prior to the Amendment in 2015 in
Finance Act from the petitioner, in the light of Ext.P2
judgment passed by the Hon'ble High Court of Kerala.
iii) to issue a writ of mandamus or any other appropriate writ,
order or direction commanding the respondents to permit the
petitioner to file refund applications for the service tax paid
towards period prior to the amendment of 2015 in Finance Act
and allow the refund on such applications.
iv) A writ of mandamus or any other appropriate writ, order
or direction commanding the respondents to not to take
coercive steps against the petitioner on the basis of Ext.P1
order;
2. Petitioner has based its contentions on the decision
in Union Of India v. M/s.Margadarshi Chit Funds (P)
Ltd. [AIR 2017 SC 3730] as well as the decision in
WP(C) NO. 1253 OF 2019
All Kerala Association of Chit Funds v. Union of
India [(2018) 55 GSTR 389]. It is submitted that
for the period involved in this dispute, as per Ext.P1
order in original, petitioner is not liable to pay any
service tax.
3. A counter affidavit has been filed on behalf of the
respondents, in which paragraph No.5 reads as
follows:
5.In this connection, it is humbly submitted that as per the
judgment of the Hon'ble Supreme Court in the Case of
M/s.Margadarshi Chit Funds (P) Ltd. dated 04.07.2017 (2017
(3) G.S.T.L.3(S.C.)) and the judgment dated 14.03.2018 of
Hon'ble High Court of Kerala in the Writ Appeals/Writ
petitions moved by All Kerala Association of Chit Funds,
Kaloor, Cochin (2018(12)G.S.T.L 142(Ker)), it is held that the
service provided relating to chit fund business for the period
01.07.2012 to 14.06.2015 are not taxable. In view of the
above judgment of the apex court, the recovery of amount on
account of the Order-in-Original No.77/2015-16 ST dated
22.03.2016 is not enforceable. Therefore, no action has been
initiated by the respondent to recover these amounts so far. It
is also submitted that no action shall be initiated as a part of
recovery proceedings against the party.
WP(C) NO. 1253 OF 2019
4. I have heard Sri.Lindson C.Davis, the learned counsel
for the petitioner as well as Sri.Thomas Mathew
Nellimoottil, the learned Standing Counsel for the
respondents.
5. In the light of the statement in the counter-affidavit
that Ext.P1 order in original shall not be enforced, I
am of the view that the order in original being
contrary to the judgment in M/s.Margadarshi Chit
Funds' case (Supra) as well as that in All Kerala
Association of Chit Funds case (Supra) ; the said
order has no legs to stand in the eye of law.
Therefore, Ext.P1 is liable to be set aside and I do
so.
6. While dictating the judgment, the learned counsel
for the petitioner submitted that during the
proceedings before the assessing officer, petitioner
had made deposits towards the service tax and the
same is liable to be refunded.
WP(C) NO. 1253 OF 2019
7. If any deposit of service tax that governs the period
covered under Ext.P1 was made, the petitioner will
be at liberty to file appropriate applications seeking
refund of the said amounts in accordance with law.
If such an application is filed, the same shall be
considered and appropriate orders thereon shall be
passed by the competent authority in a time bound
manner.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/16/02//2022
WP(C) NO. 1253 OF 2019
APPENDIX OF WP(C) 1253/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER IN ORIGINAL
NO.77/2015-16 ST DATED 22.03.2016 PASSED
BY 4TH RESPONDENT, AGAINST 8TH
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
14.03.2018 IN WPC 18700/2016 BY THE
HON'BLE HIGH COURT OF KERALA.
RESPONDENTS EXHIBITS : NIL
TRUE COPY
