Mr. Santhosh Eappen vs The Joint Commissioner Of Central Tax ...
2024 Latest Caselaw 29554 Ker

Kerala High Court

Mr. Santhosh Eappen vs The Joint Commissioner Of Central Tax ... on 17 October, 2024

Author: P Gopinath

Bench: P Gopinath

                                                         2024:KER:77356
W.P (C) No.20875/2024          -1-
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946

                       WP(C) NO. 20875 OF 2024

PETITIONER/S:

          MR. SANTHOSH EAPPEN,
          AGED 52 YEARS
          32/8 B4/2, SURYA GAYATHRI, PUTHIYA ROAD, NEW JUNCTION,
          THAMMANAM, ERNAKULAM-6820322 NOW AT UNITAC ARCADE, 3RD
          FLOOR, VYTTILA, THYKOODAM, PIN - 682019


          BY ADVS.
          ADITYA UNNIKRISHNAN
          PRIYADARSINI S.
          BINISHA BABY
          ANIL D. NAIR (SR.)

RESPONDENT/S:

    1     THE JOINT COMMISSIONER OF CENTRAL TAX AND CENTRAL
          EXCISE, 4TH FLOOR, CENTRAL EXCISE BHAVAN, KATHRIKADAVU,
          COCHIN, PIN - 682017

    2     THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE AND
          CENTRAL EXCISE, ERNAKULAM DIVISION, KATHRIKADAVU,
          COCHIN, PIN - 682017

    3     THE DEPUTY COMMISSIONER OF CENTRAL EXCISE AND CENTRAL
          EXCISE, ERNAKULAM DIVISION, KATHRIKADAVU, COCHIN, PIN -
          682017

          BY ADV R.HARISHANKAR
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                 2024:KER:77356
W.P (C) No.20875/2024                  -2-
                               JUDGMENT

The petitioner has approached this court being aggrieved by the fact

that certain amount of refund directed to be refunded to the petitioner has

been illegally adjusted against service tax dues of a proprietary concern of the

petitioner known as 'Unitac Electricals'.

2. It is the case of the petitioner that certain pre-deposit required to be

made in respect of a company known as 'Unitac Energy Solutions (P) Ltd.,

was wrongly remitted by the petitioner in his own name. Accordingly an

application for refund was filed leading to the issuance of Ext.P1 order

directing such refund. It is the case of the petitioner that, however, without

actually making the refund, the amount due as refund was adjusted against

the service tax dues of Unitac Electricals. It is submitted that this was done

without notice and also ignoring the fact that the order imposing liability

upon Unitac Electricals was already in appeal before the Appellate Authority.

It is submitted that while filing the appeal, Unitac Electricals has also made

necessary pre-deposit and therefore the recovery of amounts to the service tax

dues of Unitac Electricals from the amount of refund directed to be paid to

the petitioner is clearly illegal and unsustainable in law.

3. The learned Standing counsel appearing for the Revenue would

submit that the Unitac Electricals is not an entity distinct from the petitioner 2024:KER:77356

who is stated to be its proprietor. It is submitted that since Unitac Electricals

has no legal status of its own, the liability of Unitac Electricals is actually the

liability of the petitioner. It is submitted while ordering a refund the

competent authority had the authority to consider whether the refund is to be

adjusted against any outstanding demand and having found that there was an

outstanding demand in the name of Unitac Electricals no fault to be found

with the officer for directing the adjustment of the refund against the demand

in the name of the Unitac Electricals.

4. Having heard the learned counsel for the petitioner and the learned

Standing counsel appearing for the respondents, I am of the view that the

petitioner has not made out any case of grant of relief sought for in this writ

petition. The learned Standing counsel is right in contending that since

Unitac Electricals is a proprietory concern of the petitioner the amount of

refund due to the petitioner could have been adjusted against the dues of the

Unitac Electricals as Unitac Electricals is not a distinct legal entity having

legal status. Therefore the liability of Unitac Electricals is actually the liability

of the petitioner. The learned counsel for the petitioner may be right in

contending that the adjustments should have been preceded by notice.

However, in the absence of a provision in the Finance Act, 1994 or in the

applicable provisions of the Central Excise Act, 1944 requiring the issuance of 2024:KER:77356

such notice as distinct from the provisions of the Income Tax Act, 1961, I am

of the view that the proceedings adjusting the refund need not be set aside for

the reason that the action was not preceded by notice. In that view of the

matter, no relief can be granted to the petitioner in this writ petition.

Accordingly this writ petition will stand dismissed. The credit of adjustment

of refund against the dues of Unitac Electricals shall be duly accounted.

Writ petition fails and will stand dismissed.

Sd/-

GOPINATH P. JUDGE

AMG 2024:KER:77356

APPENDIX OF WP(C) 20875/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER DATED 3.10.2023 ISSUED BY 3RD RESPONDENT

RESPONDENT EXHIBITS

Exhibit R1 (a) True copy of letter dated 06-02-2024 issued by the department to petitioner

Exhibit R1 (b) True copy of reply dated 14-02-2024 issued by the petitioner

Exhibit R1 (c) True copy of notice dated 05-04-2024 issued under section 87(b)(i) to HDFC bank, Vytilla Branch

PETITIONER EXHIBITS

Exhibit P2 True copy of order dated 30-04-2024 issued by 3rd Respondent.