Madras High Court
Union Of India vs M/S. Orchid Chemicals & ... on 24 November, 2021
W.A.No. 88 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2021
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. No. 88 of 2012
and
M.P.No.1 of 2012
1. Union of India
Rep. by the Secretary
Department of Revenue
Ministry of Finance
New Delhi – 110 001.
2. The Chairman
Central Board of Excise & Customs
North Block
New Delhi – 110 001.
3. The Chief Commissioner of Central Excise
Nungambakkam High Road
Nungambakkam
Chennai – 600 034. .. Appellants
v.
M/s. Orchid Chemicals & Pharmaceutials Ltd.
313, Valluvar Kottam High Road
Nungambakkam
Chennai – 600 034. .. Respondent
1/6
https://www.mhc.tn.gov.in/judis
W.A.No. 88 of 2012
Appeal filed under Clause 15 of the Letters Patent to set aside the
order dated 16.08.2010 passed in W.P.No. 6460 of 2006.
For Appellants : Mr. A.P.Srinivas
For Respondent : Mr. R.Raghavan
JUDGMENT
(Judgment of the court was made by R.Mahadevan, J.)
This appeal arises from the order of this court dated 16.08.2010
passed in W.P. No. 6460 of 2006.
2.The relief sought in the above referred writ petition filed by the
respondent herein is to issue a writ of declaration declaring the Explanation
to section 65(105) of the Finance Act, 1994 and Rule 2(1)(d)(iv) of the
Service Tax Rules, 1994 as introduced by the Finance Act, 2005 and
Notification No.23/2005 ST, dated 07.06.2005 respectively, as ultra vires
Articles 19(1)(g), 245 and 265 of the Constitution of India.
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W.A.No. 88 of 2012
3.The learned single judge, after following the decision of a Division
Bench of Bombay High Court in Indian National Shipowners Association
v. Union of India [2009 (13) STR 235 (Bom.), which was confirmed by the
Supreme Court in SLP Civil No.18932 of 2009 on 14.12.2009, has disposed
of the writ petition, holding that the appellants cannot levy service tax on
the respondent company for the period from 01.03.2002 till 17.04.2006 in
relation to the services received.
4.Challenging the aforesaid order, the appellants have preferred this
writ appeal, by relying on a judgment of the Rajasthan High Court in Union
of India v. Aditya Cement [2008 (10) STR 228 (Raj)].
5.When the matter was taken up for consideration, the learned
counsel for the appellants and the learned counsel for the respondent
submitted that the issue involved herein is covered by the judgment of this
Court in W.A.No.1386 of 2011 dated 17.01.2018 in the case of UOI, Rep.
by the Secretary, Department of Revenue, Ministry of Finance, New
Delhi v. Wheels India Limited, in which, the Division Bench of this court,
https://www.mhc.tn.gov.in/judis
W.A.No. 88 of 2012
after following the supreme court decision in SLP Civil No.18932 of 2009,
dismissed the writ appeal. The observations made in the said judgment are
profitably extracted below:
“4.The learned single Judge by placing reliance on
the law laid down by the Division Bench of the Bombay
High Court, which was confirmed by the Hon'ble Supreme
Court in S.L.P.Civil No.18932 of 2009 allowed the writ
petition filed by the respondent. There is no question of
setting aside the order passed by the learned single Judge on
the basis of a decision rendered by a learned single Judge of
the Rajasthan High Court. The appellants have filed this
appeal without any legal basis. When there is a judgment
rendered by the Hon'ble Supreme Court interpreting the
provisions of Service Tax, it is not open to the appellants to
file an appeal by placing reliance on the decision of the
High Court of Rajasthan. In fact, the decision rendered by
the High Court of Rajasthan was much prior to the
judgment rendered by the Hon'ble Supreme Court.
5.The High Court is flooded with litigations at the
instance of the Government and the present case is a classic
example as to how appeals are filed in a routine manner by
placing reliance on the judgment of the High Court in a
matter wherein, the issue is covered by the judgment of the
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W.A.No. 88 of 2012
Hon'ble Supreme Court. We hope and trust that the Union
of India would not file such frivolous appeals henceforth.
6.The writ appeal is dismissed with the above
observation. No costs. Consequently, connected
miscellaneous petition is closed.”
6.Following the above referred judgment, this writ appeal is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
[R.M.D., J.] [M.S.Q., J.]
24.11.2021
Index : Yes/No
Speaking/Non-Speaking Order
Maya
To
1. The Secretary
Department of Revenue
Ministry of Finance
New Delhi – 110 001.
2. The Chairman
Central Board of Excise & Customs
North Blockm
New Delhi – 110 001.
https://www.mhc.tn.gov.in/judis
W.A.No. 88 of 2012
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
Maya
3. The Chief Commissioner of Central
Excise, Nungambakkam High Road
Nungambakkam
Chennai – 600 034.
W.A. No. 88 of 2012
Dated : 24.11.2021
https://www.mhc.tn.gov.in/judis
