Patna High Court
M/S Ishwar And Co. Contract Pvt. Ltd vs The Union Of India on 18 March, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10638 of 2024
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M/s Ishwar and Co. Contract Pvt. Ltd through its proprietor Bikesh Kumar,
aged about 40 years, son of Shayam Deo Kumar, residence of Gokhle nagar,
Bishanpur, ward no 5, Gokhle Nagar, Bishanpur, Tajpur, Begusarai.
... ... Petitioner.
Versus
1. The Union of India through Its Principal Chief Commissioner of Central
Excise and Service tax, B.C. Patel Path, Patna.
2. Assistant Commissioner central GST and Central Excise division Begusarai.
... ... Respondents.
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Appearance :
For the Petitioner : Ms. Archana Sinha @ Archana Shahi, Senior Advocate.
For the Respondent-UOI : Dr. Krishna Nandan Singh, ASGI.
Mr. Anshuman Singh, Sr. SC, CGST & CX.
Mr. Mayank Mishra, JC to ASG.
Mr. Amarjeet, JC to ASG.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 18-03-2025
In the instant writ petition, the petitioner has prayed for
the following reliefs:
"(i) For setting aside the order dated
12.03.2024
passed by respondent number 2 by
which he has raised the demand of service tax
including cess amounting to ₹10,60,415/- not paid
by the petitioner during the period financial year
2015-2016 and 2016-17 under proviso to section
73(2) of the Finance act read with Section 174 of
CGST act 2017.
(ii) For setting aside the demand of
interest at the applicable rate on the amount as
Patna High Court CWJC No.10638 of 2024 dt.18-03-2025
demanded under the provisions of section 75 of the
Finance act 1994 read with section 174 of the
CGST act.
(iii) For setting aside the penalty of ₹
10,60,415/- under the provisions of section 78 of
the Finance act 1994 read with section 174 of the
CGST act for wilful suppression of material facts
with interest to evade payment to service tax.
(iv) For setting aside the penalty of ₹
5000/- under the provisions of section 77(1)(a) of
the Finance act 1994 read with section 174 of
CGST act for failure to take registration in
accordance with the provisions of section 69 of the
act.
(v) For setting aside the penalty of ₹ 5000
under section 77(2) of the Finance act 1994. Read
with section 174 of the CGST act for violation of
the provision of section 70 of the act read with rule
7 of the rules.
(vi) For setting aside the penalty of ₹5000
under Section 77(2) of the Finance act read with
section 174 of the CGST for violation of the
provision of section 67 and 68 of the act.
(vii) For setting aside the penalty of
₹10,000/- under Section 77(1)(c)(ii) of the act read
with section 174 of the CGST act for failure to
produce document as called for by the Department.
(viii) To issue an appropriate order/
direction in the nature of mandamus directing the
respondent's authority not to take any course of
Patna High Court CWJC No.10638 of 2024 dt.18-03-2025
action against the petitioner until the disposal of
this writ petition.
(ix) To any other relief or reliefs for which
the petitioner may be found entitled to in the facts
and circumstances of the case during its hearing.
2. Learned counsel for the petitioner submitted that
petitioner is not in receipt of show cause notices and personal
hearing notices and further submitted that issuance of show
cause notices itself is contrary to Circular dated 5th November,
2019, in particularly, paragraphs-2 and 4. The counsel for
Union of India, however submitted that the petitioner has
statutory remedy of appeal before the Appellate Authority.
Without exhausting statutory remedy of appeal, petitioner has
rushed to this Court.
3. We could have interfered with the impugned order if
the petitioner's contention relating to non-service of notices, on
the other hand, petitioner is represented by his representative as
is evident from paragraph-8 relating to personal hearing in the
impugned order. Petitioner is represented by Shri Balram
Bharti, Chartered Accountant, an authorized representative of
the petitioner. In the light of representative of the petitioner
appeared before the Appellate Authority for personal hearing.
The contention of the petitioner that notices have not been
Patna High Court CWJC No.10638 of 2024 dt.18-03-2025
served to the petitioner in the manner known to the law, is not
tenable. Insofar as consideration of Circular dated 5th
November, 2019, in particularly, paragraphs-2 and 4, is required
to be examined by the Appellate Authority. Therefore, instant
writ petition is premature. Accordingly, instant writ petition
stands disposed of in the light of the decision of the Hon'ble
Supreme Court in the case of State of Jammu and Kashmir
Versus R.K. Zalpuri, reported in AIR 2016 Supreme Court
3006 (Para-20). The overall principle laid down in the
aforesaid decision is that if a person is having statutory remedy
of appeal before the Appellate Authority in that event he has to
exhaust such remedy. Writ Court can interfere only if there is
any violation of principles of natural justice and violation of any
statutory provision of law. Both the ingredients have not been
made out by the petitioner in the present case. Therefore, we
relegate the petitioner to the Appellate Authority insofar as
filing of appeal before the Appellate Authority. In the event of
filing of appeal before the Appellate Authority, Appellate
Authority is requested to decide the petitioner's appeal within a
reasonable period of time of six months from the date of receipt
of such memorandum of appeal.
4. The Appellate Authority is hereby directed to take
Patna High Court CWJC No.10638 of 2024 dt.18-03-2025
note of Section 14 of the Limitation Act for the purpose of
condonation of delay to the extent that petitioner has spent time
in this Court. Petitioner is also permitted to submit
Interlocutory Application seeking interim relief, if any.
(P. B. Bajanthri, J)
( Alok Kumar Sinha, J)
P.S./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 21.03.2025.
Transmission Date NA
