IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE19H DAY OF FEBRUARY201430TH MAGHA, 1935 WP(C).No. 2795 of 2014 (Y) -------------------------------------- PETITIONER: ------------------- THE KERALA STATE FINANCIAL ENTERPRISES LTD., `BHADRATHA', P.B. NO.510, MUSEUM ROAD, THRISSUR- 680 020, REPRESENTED BY ITS MANAGING DIRECTOR (IN CHARGE). BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH MENON, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI -110 001.
2. CENTRAL BOARD OF EXCISE & CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, 156, NORTH BLOCK1 NEW DELHI -110 001.
3. CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING, I.S PRESS ROAD, COCHIN- 682 018. BY SRI.THOMAS MATHEW NELLIMOOTTIL,S.C, CENTRAL EXCISE & CUSTOMS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON1902-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.2795/2014-Y: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF THE JUDGMENT
OF THE HONOURABLE HIGH COURT OF DELHI DATED234.13 IN W.P.(C). NO.4512/12. EXHIBIT P2: COPY OF THE ORDER
DATED71.14 IN S.L.P(C). NO.24998/13. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.R. RAMACHANDRA MENON, J.
--------------------------------------- W.P.C. No.2795 OF2014--------------------------------------- Dated this the 19th day of February, 2014. JUDGMENT
The petitioner has approached this Court with the following prayers:- "(i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to exercise its powers under Section 37B of the Central Excise Act, 1944 (applicable to service tax by virtue of Section 83 of the Finance Act, 1994) and issue necessary orders, instructions and directions holding that the services in relation to a chit do not fall within the definition of 'service' as defined in Section 65B(44) of the Finance Act, 1994 (as amended) in the light of Exts.P1 and P2 judgments; AND (ii) issue such other writs, orders or direction which this Hon'ble Court may deem fit and proper to issue in the facts and circumstances of the case." 2. The case projected by the petitioner has been sought to be rebutted by filing a statement on behalf of the respondents.
3. The petitioner has moulded the pleadings and prayers, with reference to Ext.P1 judgment rendered by the Delhi High Court in WP(c) No. 4512 of 2012, whereby it was declared that the Chitty transaction being pursued by the parties like the petitioner is not eligible to 'Service Tax'. It is stated that, though W.P.C.No.2795 of 2014 2 an S.L.P. was preferred therefrom, the same did not turn to be fruitful and interference was declined as per Ext.P2 order dated 07.01.2014.
4. The case of the petitioner is that, in so far as Delhi is concerned, there cannot be any Service Tax and as such, the petitioner finds it difficult to explain the position to the customers, since it is not so, in so far as the State of Kerala is concerned. This cannot be a ground for entertaining the writ petition, if the issue is settled otherwise. Further, there is no case for the petitioner that the petitioner is having any branch or business in Delhi. This being the position, the verdict passed by the Delhi High Court and Ext.P2 order passed by the Apex Court dismissing the S.L.P., cannot have any bearing with regard to the transaction being pursued by the petitioner in the State of Kerala. Even otherwise, the dismissal of SLP by Ext.P2 does not result in any merger, nor can it be treated as an approval of the verdict of the Supreme Court.
5. In so far as the issue in question is concerned, this Court W.P.C.No.2795 of 2014 3 has already considered the matter in detail and a decision has been rendered, holding that the instance is accessible to 'Service Tax' as per the decision reported in 2013 (29) S.T.R. 557 (Ker.). This being the position, this Court finds it difficult to accept the proposition mooted by the petitioner. Interference is declined and the writ petition is dismissed. P.R. RAMACHANDRA MENON, JUDGE sp