Mithlaj. P., vs the Commissioner of Central Tax & Central Excise ( Appeals ),

Mithlaj. P., vs The Commissioner of Central Tax & Central Excise ( Appeals ),

Type Court Judgment Court Kerala Decided Dec 13, 2023

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Citation: sooperkanoon.com/1412131
Court: Kerala High Court
Judge: Honourable Dr. Justice a.K.Jayasankaran Nambiar,Honourable Dr. Justice Kauser Edappagath
Decided On: Dec 13, 2023
Case Number: WA/2138/2023

Parties & Advocates

Appellant / Petitioner

Mithlaj. P.,

Respondent

The Commissioner of Central Tax & Central Excise ( Appeals ),

Excerpt

.....be said that ext.p6 was passed without jurisdiction or without complying with the principles of natural justice. without challenging ext.p6 in appeal, the appellant cannot challenge the same in the writ petition. hence, the challenge against exts.p6 and p8 must fail.4. the learned counsel for the appellant submitted thatthe appellant may be granted instalment facility to clear off the liability, and he may be permitted to operate the bank account on payment of the first instalment. the learned standing counsel for the respondents submitted that the commissioner has the power to grant a maximum of 24 instalments.5. considering the facts and circumstances of the caseand the present financial condition of the appellant, we are of the view that the appellant can be permitted to clear off the service tax liability by way of instalments. hence, the following order is -:6:- passed:(i) the appellant shall make a payment of `25,00,000/- (rupees twenty-five lakhs only) towards the service tax liability on or before 31st january, 2024.(ii) on such payment, the respondents shall take steps to lift the freezing of the bank account and permit the appellant to operate his bank account.(iii) the appellant shall pay the balance service tax liability in 24 equal monthly instalments w.e.f. 1st march, 2024.(iv) if the appellant defaults on the payment of any of the instalments, the respondents will be free to proceed against the appellant to recover the entire due in accordance with law. writ appeal is disposed of as above. sd/- dr. a.k.jayasankaran nambiar judge sd/- dr. kauser edappagath judge rp

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 13TH DAY OF DECEMBER 2023/22ND AGRAHAYANA,1945 WA NO. 2138 OF 2023 AGAINST THE JUDGMENT WP(C) 4079/2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: MITHLAJ. P., AGED 40 YEARS S/O SAIDALAVI, PORUTHIYIL HOUSE, P.O. VALARA, ADIMALI, PIN - 685561 BY ADVS. ANIL SIVARAMAN JOTHISHA K.A. RAJI VINCENT SREELEKHA. P RESPONDENT/S:
1 THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE ( APPEALS ), CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, COCHIN, PIN - 682018 2 ASSISTANT COMMISSIONER CENTRAL TAX & CENTRAL EXCISE, IDUKKI DIVISION, K.P.VARKEY'S MALL,2ND FLOOR, ROTARY JUNCTION, THODUPUZHA, PIN - 685584 3 SUPERINTENDENT OF CENTRAL GST & CENTRAL EXCISE MUNNAR RANGE, TOP STATION ROAD, MUNNAR, PIN - -:2:- OTHER PRESENT: SC. ADV SREELAL N WARRIER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-

JUDGMENT

Dr. Kauser Edappagath, J.

The appellant is the writ petitioner. He is a businessman dealing in spices, herbals and other tourism-related activities. On

stating that information provided by the Income Tax Department for the financial year 2016-17 indicates that the appellant received `2.42 crores for the services provided by him, but he did not pay service tax. The appellant was directed to provide the list of services he provided, and month-wise details of payment received for the services provided from April 2016 to June 2017, along with details regarding the income. The appellant did not respond to the notice. Hence, the 3 rd respondent issued Ext.P2

reminder. The appellant gave Ext.P3 reply to Ext.P2 reminder. After that, the 3rd respondent issued Ext.P4 show cause notice to which the appellant gave Ext.P5 reply. Though an opportunity was given to the appellant for a personal hearing, he did not avail it. After considering the rival contentions, the 2nd respondent -:4:-

passed Ext.P6 order upholding charges in the show cause notice finding that the appellant is liable to pay an amount of `36,19,736/- towards service tax u/s 73(2) of the Finance Act, 1994 r/w section 174(2) of the CGST Act, 2017, interest u/s 75 of the Finance Act, 1994, penalty of `36,19,736/- equivalent to the service tax confirmed u/s 78 of the Finance Act, 1994 and further penalty of `10,000/- u/s 77 of the Finance Act, 1994 r/w Section 174(2) of the CGST Act, 2017. The appellant did not challenge the said order in appeal. Thereafter, the 2nd respondent issued Ext.P8 notice to the appellant's Bank u/s 87(b) of Chapter (V) of the Finance Act, 1994, directing the Bank not to permit any withdrawal from the accounts held by the appellant until the

service tax liability is fully satisfied. Challenging Exts.P6 and P8, the appellant preferred the writ petition before the learned Single

Judge. The learned Single Judge as per the impugned judgment

dismissed the writ petition. It is challenging the said judgment; the appellant is before us.

2. We have heard Sri.Anil Sivaraman, the learned counsel for the appellant and Sri.Sreelal N.Warrier, the learned standing counsel for the respondents. -:5:-

3. The appellant did not challenge Ext.P6 order imposing service tax, interest and penalty by preferring statutory appeal. It

has become final. Ext.P8 notice is in effect issued to enforce Ext.P6 order. Ext.P6 order has been passed after complying with all the statutory formalities and giving sufficient opportunity to the appellant for hearing. It cannot be said that Ext.P6 was passed without jurisdiction or without complying with the principles of natural justice. Without challenging Ext.P6 in appeal, the appellant cannot challenge the same in the writ petition. Hence, the challenge against Exts.P6 and P8 must fail.

4. The learned counsel for the appellant submitted that

the appellant may be granted instalment facility to clear off the liability, and he may be permitted to operate the bank account on payment of the first instalment. The learned standing counsel for the respondents submitted that the Commissioner has the power to grant a maximum of 24 instalments.

5. Considering the facts and circumstances of the case

and the present financial condition of the appellant, we are of the view that the appellant can be permitted to clear off the service tax liability by way of instalments. Hence, the following order is -:6:- passed:

(i) The appellant shall make a payment of `25,00,000/- (Rupees Twenty-Five lakhs only) towards the service tax liability on or before 31st January, 2024.

(ii) On such payment, the respondents shall take steps to lift the freezing of the bank account and permit the appellant to operate his bank account.

(iii) The appellant shall pay the balance service tax liability in 24 equal monthly instalments w.e.f. 1st March, 2024.

(iv) If the appellant defaults on the payment of any of the instalments, the respondents will be free to proceed against the appellant to recover the entire due in accordance with law. Writ appeal is disposed of as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- DR. KAUSER EDAPPAGATH JUDGE Rp

Same Court & Year Kerala · 2023 Same Parties Mithlaj. P., vs The Commissioner of Central Tax & Central Exc... Same Judge Honourable Dr. Justice a.K.Jayasankaran Nambiar,Honourable Dr...