Madras High Court
M/S.Kavee Marketing vs The Assistant Commissioner on 27 July, 2021
WP No.12026 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-07-2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.12026 of 2012
And
MP No.1 of 2012
M/s.Kavee Marketing,
Represented by its Proprietor,
A.K.Elangovan,
No.313/118 Public Office Road,
Velipalayam,
Nagapattinam. .. Petitioner
vs.
1.The Assistant Commissioner,
Central Excise Division,
Karaikal, Office of the Assistant Commissioner
of Central Excise,
No.1 Nool Kadai Street,
Karaikal-609 602.
2.Bharat Sanchar Nigam Limited (BSNL),
Represented by its General Manager,
Kumbakonam. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Prohibition, prohibiting the first
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WP No.12026 of 2012
respondent from proceeding further with his communication dated
25.11.2011 in C.No.V/15/15/11/2011 ST (Adj) as it is without jurisdiction.
For Petitioner : Mr.N.Murali Kumaran for
M/s.MCGAN Law Firm.
For Respondent-1 : Mr.V.Sundareswaran,
Standing Counsel.
For Respondent-2 : Mr.K.Anbarasan
ORDER
The show cause notice dated 25.11.2011 issued by the first
respondent regarding non payment of service tax, is under challenge in the
present writ petition.
2. The petitioner is a dealer in SIM Card and Recharge Coupon of
the Bharat Sanchar Nigam Limited, hereinafter referred to as 'BSNL', in
short. The price of the SIM Card as well as the Recharge Coupon are fixed
by the second respondent. The petitioner and persons similarly placed like
that of the petitioner purchased the same at a discount and sell it to the end
users. The selling price of SIM Card and Recharge Coupon are fixed and
controlled by BSNL and sellers like the petitioner have no control over the
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WP No.12026 of 2012
same.
3. The petitioner states that the business is limited to the extent of
purchasing and selling the SIM Cards and Recharge Coupons in the hands
of subscribers of BSNL. The said BSNL is liable to discharge the service
tax as prescribed under the Service Tax Law and are discharging the service
tax liability to the Department of Service Tax as required under the Law.
Under these circumstances, the petitioner claims no liability.
4. The learned counsel appearing on behalf of the petitioner made
a submission that the issue was considered by this Court in number of writ
petitions and decisions are rendered in favour of the persons, who all are
similarly placed like that of the petitioner. While-so, there is no reason to
issue further show cause notice to the writ petitioner.
5. This Court is of the considered opinion that even in such cases,
there are some judgments, which all are applicable with reference to the
facts and circumstances of the case. It is left open to the writ petitioner to
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WP No.12026 of 2012
adjudicate the factual aspects before the authorities, enabling them to
consider the same and pass order on merits and in accordance with law.
Contrarily, the High Court need not entertain a writ petition against a show
cause notice in a routine manner.
6. The writ against a show cause notice may entertain only on
exceptional circumstances where the authority without issuing such notice
is incompetent under the provisions of the Statutes or the Rules. If there is
an allegation of mala fide, then also writ can be entertained. In such
circumstances, the authorities against whom such allegations on mala fide
are raised is to be impleaded as a party respondent in his personal capacity
in the writ proceedings.
7. In respect of the merits of the case, the petitioner has to submit
the defence statement along with the judgments relied on as well as the
documents and the evidences, if any, for the purpose of considering the
same by the authorities.
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WP No.12026 of 2012
8. In the present case, the show cause notice itself was issued in
the year 2011 and due to the pendency of the writ petition, the writ
petitioner has not submitted the defence statement and the authorities have
also not passed orders.
9. This being the factum established, the petitioner is at liberty to
submit his defence statement/explanation along with the documents as well
as the judgments passed by the High Court in the subject, within a period of
four weeks from the date of receipt of a copy of this order. On receipt of any
such explanations/documents etc., from the petitioner, the respondent is
directed to consider the same on merits and in accordance with law, within a
period of twelve weeks from the date of receipt of the defence statement
from the petitioner.
10. With the above directions, the writ petition stands disposed
of. However, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
27-07-2021
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
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WP No.12026 of 2012
S.M.SUBRAMANIAM, J.
Svn
To
1.The Assistant Commissioner,
Central Excise Division,
Karaikal, Office of the Assistant Commissioner
of Central Excise,
No.1 Nool Kadai Street,
Karaikal-609 602.
2.The General Manager,
Bharat Sanchar Nigam Limited (BSNL),
Kumbakonam.
WP No.12026 of 2012
27-07-2021
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