Kerala High Court
T.R. Vijayakumar vs The Superintendent Of Central Tax & ... on 27 March, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
WP(C) NO. 5585 OF 2024
PETITIONER:
T.R. VIJAYAKUMAR,
AGED 67 YEARS
PROPRIETOR, M/S. ELITE DISTILLERIES & BEVERAGES CO.,
MUNDUR, THRISSUR, PIN - 680541
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
R.SREEJITH
K.KRISHNA
PARVATHY MENON
PADMANATHAN K.V.
RESPONDENTS:
1 THE SUPERINTENDENT OF CENTRAL TAX & CENTRAL EXCISE,
CENTRAL TAX & CENTRAL EXCISE, CHEMBUKAVU RANGE,
THRISSUR, PIN - 680020
2 THE ASSISTANT COMMISSIONER,
CENTRAL TAX &CENTRAL EXCISE, C.R. BUILDINGS, S.T.
NAGAR, THRISSUR, PIN - 680001
3 THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE,
C.R. BUILDINGS, I.S. PRESS ROAD, KOCHI, PIN - 682018
BY ADV P.G.JAYASHANKAR
SRI. P.G. JAYASHANKAR-SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.5585 of 2024
2
JUDGMENT
Dated this the 27th day of March, 2024
Heard Ms.K.Krishna, learned counsel for the
petitioner and as well as Sri. P.G Jayashankar, learned
Standing Counsel for the respondent authorities.
2. The petitioner is the proprietor of M/s.Elite
Distilleries & Beverages Co., situated at Mundur,
Thrissur. As per the averments in the writ petition, the
writ petitioner concerned is engaged in blending and
bottling of Indian Made Foreign Liquor on behalf of
other distilleries. The petitioner is an assessee for
service tax under the provisions of the Finance Act,
1994.
3. The service tax of Rs.15,66,169/- was demanded
from the petitioner from April 2006 to September 2007.
As in the opinion of the taxing authorities, the
petitioner services were under the category of
"Business Auxiliary Service". Another tax amount of
Rs.9,86,025/- was demanded and paid by the petitioner
from the period from October 2007 onwards.
4. It appears that the Ministry of Finance,
Government of India, has issued a clarification dated
27.10.2008, clarifying that the services rendered by the
petitioner is not taxable under the provisions of the
Finance Act, 1994 for service tax.
5. After the said circular was issued, the petitioner
made an application for refund of the service tax
amount. The petitioner's application was considered in
respect of the payment made by the petitioner from
April 2006 to September 2007 for an amount of
Rs.15,66,169/- and was rejected on the ground that the
petitioner had filed the said application after one year,
the statutory period prescribed under Section 11B of
the Central Excise Act, 1944 for making any such
application. The original authority rejected the claim of
the petitioner for refund of Rs.9,86,025/- paid by him
from October 2007 onwards, on the ground of unjust
enrichment.
6. The petitioner aggrieved by the said order of the
original authority, filed appeal before the Commissioner
(Appeals)-II, Cochin. The Commissioner (Appeals) held
the petitioner entitled for refund of Rs.9,62,543/- and
thus modified the order in original.
7. The Revenue took up this matter before the
CESTAT against the order passed in Ext.P2 by the
Commissioner (Appeals). The Tribunal vide the order
dated 19.01.2018 in Ext.P3, remanded the matter back
to the original authority to examine the record of the
petitioner afresh and pass a fresh order. On remand,
the 2nd respondent/original authority had considered
the issue afresh and issued order dated 25.03.2021 in
Ext.P5. The 2nd respondent had found that the payment
of Rs.15,66,169/- was made under protest. However,
the petitioner did not produce any convincing
document to prove that the tax paid by him of
Rs.15,66,169/- had not been passed on to the consumer
of services ie., the respective distilleries and therefore,
the petitioner had been held not to be entitled for
claiming refund in absence of the evidence to prove
that the petitioner had not passed on the tax liability on
the distilleries, and he had paid an amount of
Rs.15,6,169/- from the own pocket.
8. As a regards to the 2nd figure of Rs.9,62,543/-,
the original authority- the 2nd respondent found that out
of the said amount, Rs.2,78,100/- was paid by the
petitioner on 04.01.2007 and the application was made
after one year, which would be barred under Section
11B of the Central Excise Act, 1944. As regards the
balance,the petitioner failed to prove that there was no
unjust enrichment as the said amount was not passed
on to the distilleries, the consumers of the services of
the petitioner. The learned counsel for the petitioner
has submitted that the Chartered Accountant's
certificate has not been taken into consideration.
9. In the sense, the question is of evidence and not
on of the law. Whether the petitioner had passed on the
tax liability on the distilleries, the consumers of the
services of the petitioner is a matter of fact and
evidence, and this Court cannot go into this question in
exercise of its jurisdiction under Article 227 of the
Constitution of India. In respect of the amount of Rs.
2,78,100/-, the original authority had categorically held
that the application had been filed after one year of
prescribed limitation period, and in respect of the other
amount, he had failed to prove that the said tax liability
had not been passed on to the consumers of the
petitioner service. Therefore, this Court cannot
examine the issue, which is only a question of fact and
evidence and not of the law.
Therefore, this Court find no substance in this writ
petition. Thus, the writ petition is hereby dismissed.
Sd/-
DINESH KUMAR SINGH
JUDGE
AP
APPENDIX OF WP(C) 5585/2024
PETITIONER EXHIBITS
Exhibit p1 COPYOF ORDER ISSUED BY THE DEPUTY
COMMISSIONER OF CENTRAL EXCISE AND SERVICE
TAX, THRISSUR DIVISION DTD. 07-08-2009
Exhibit P2 COPY OF ORDER ISSUED BY THE COMMISSIONER
(APPEALS-II), COCHIN DTD. 29-07-2015
Exhibit P3 COPY OF ORDER ISSUED BY THE CUSTOMSD,
EXCISE & SERVICE TAX APPELLATE TRIBUNAL
(CESTAT), BANGALORE DTD. 19-01-2018
Exhibit P4 COPY OF CERTIFICATE ISSUED BY THE CHARTERED
ACCOUNTANT DTD. 16-10-2017
Exhibit P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT
DTD. 25-03-2021
Exhibit P6 COPY OF APPLICATION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DTD. 05-07-2021
Exhibit P7 COPY OF ORDER ISSUED BY THE 2ND RESPONDFENT
DTD. 30-08-2021
Exhibit P8 COPY OF ORDER ISSUED BY THE 2ND RESPODNENT
DTD. 09-08-2023
