Uttarakhand High Court
WPMS/121/2021 on 15 January, 2021
WPMS No. 121 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Siddhartha Singh, Advocate for
the petitioner.
Mr. Shobhit Saharia, Advocate for
the respondents.
The petitioner of the present Writ
Petition has prayed for quashing of the
show cause notice dated 11th December,
2020, bearing reference No.C.No.IV-
CGST (9) AE-I/DDN/Deepak Chawla/
15/2019, as was issued by the Assistant
Commission (Anti-Evasion-I), Dehradun.
By virtue of the said order, which is
impugned in the Writ Petition, only a
demand-cum-show cause notice has
been issued to the petitioner. Hence, no
show cause notice ought to have been
issued to the petitioner under the said
provisions, till its validity is decided by
the Hon'ble Apex Court. The petitioner
has submitted, that the provisions,
under which the show cause notice has
been issued itself is a subject matter of
consideration as its validity is sub judice
and under consideration, before the
Hon'ble Apex Court. But the admitted
fact remains that the validity of the
provisions under which the action, is
being contemplated to be taken, against
the petitioner, by virtue of the demand-
cum-show cause notice is still a statute
in existence in the eyes of law and
furthermore admittedly as against the
show cause notice, which was issued to
the petitioner, the petitioner has already
approached the respondents and had
submitted his reply before them on 12th
January, 2021, which is still pending
consideration and the same has not yet
been decided, till date, on merits.
The effect of such a situation would
be that, in accordance to the petitioner,
in fact no positive action of recovery, as
such of the service tax on royalty could
have been taken, against the petitioner,
which is in offening. The said issue is
yet to be decided by the office of the
Commissioner; before whom the
petitioner has already approached, and
filed reply, it had to be decided by it.
In that view of the matter, since at
present, there is no actual coercive
action as such, which is being taken
against the petitioner, and it is only
show cause notice issued against the
petitioner to which the petitioner has
already responded, this Writ Petition is
not maintainable, and the same is
accordingly dismissed.
The petitioner has also
simultaneously and cleverly challenged
the notification by way of an alternative
prayer. As far as the affect of the
notification, by virtue of which, it was
prescribing the criterion of levying the
service tax on the royalty, to be paid by
the holders of the mining lease,
according to the petitioner's own case,
the said issue is a matter, which is
pending consideration before the Hon'ble
Apex Court and hence, it was on that
pretext too that the petitioner was
challenging the show cause notice, itself.
It may not be ruled out, that the
modulation of the relief by putting the
challenge to the said notification, was
intended to override the issue of
opposing of Writ Petition as it was
instituted against the show cause notice,
which was put to challenge.
Merely giving a challenge to the said
notification will not make the Writ
Petition itself tenable before this Court
when the matter is sub judice before the
Hon'ble Apex Court, as already argued
by the learned counsel for the petitioner,
and that too being a Writ Petition
against the show cause notice.
After the conclusion of the
judgment, the learned counsel for the
petitioner has made a prayer that the
remedy available to him under law as
against decision on his reply, filed to the
impugned show cause notice, may be
kept reserved. It goes without saying
that if any judgment or order of
assessment is passed in relation to the
service tax on the royalty, it would
always be subject matter of appeal
under law.
(Sharad Kumar Sharma, J.)
Dated 15.01.2021
Shiv
