2016 (9) TMI 328

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....truction/renovation works carried out by them were that of exempted service under the provisions of the Commercial and Industrial Construction Service as also under the Works Contract Service [respectively under Sections 65(105)(zzq) and 65(105)(zzzza) of the Finance Act of 1994] and under Notification No.24/2009-Service Tax dated 27.07.2009 and hence, they were not liable for service tax. The competent authorities have, however, rejected the contentions of the petitioners in their respective impugned orders dated 25.05.2015 and 27.07.2015. We are not elaborating on the factual aspects and legal grounds suggested by the respective petitioners in these cases for the reason that after having heard the learned counsel for the parties and having perused the material placed on record with reference to the law applicable, we are satisfied that for availability of efficacious alternative remedy of appeal, there is no reason or justification that these matters be entertained in the writ jurisdiction. During the course of submissions, it has not been in dispute that as against the orders in question, the alternative remedy of appeal is indeed available under Section 35 of the Act of 1....

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....e period prior to 01.07.2012. Repetition of this erroneous interpretation of law is not ruled out in the event of filing the appeal and therefore, no efficacious adequate alternative remedy is available under the circumstances. 15.4 Ld Commissioner of Appeals, Central Excise & Service Tax, Guwahati, rejected the claim of exemption on the following grounds recorded in the order in appeal as below: "I have gone through the details of the work orders and find that the contract for the Road construction was composite Contract in nature including the service portion as well as cost of materials. M/S ONGC is a public limited company and its shares are sold in the stock market. So it is evident that ONGC is engaged in business & commerce and the oil & natural gas explored by them are used for commercial purpose. Hence the contention of the "Appellant" is not sustainable and the same has rightly been classified under works contract service for levying of Service Tax" 16. It is respectfully submitted that Law is well settled in case of an order passed by an authority, who has no jurisdiction to pass such order, this Court can intervene and set right the things exe....

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..... 22,20,380/- in WP(C) No.157 of 2015; and a sum of Rs. 31,99,284/- in WP(C) No.234 of 2015] with equal amount of penalty and interest, the petitioners would suffer serious hardship in depositing huge amount for maintaining the appeals. The learned counsel for the petitioners would also contend that in fact, the concerned Appellate Authority has already expressed its views in another case relating to road construction for ONGC in its order dated 28.04.2015; and repetition of the same erroneous view of law by the said Authority is not ruled out in petitioners' cases too and, therefore, the remedy of appeal cannot be considered to be an efficacious one. The learned counsel for the petitioners has referred to and relied upon several decisions including those of the Hon'ble Supreme Court in Godrej Sara Lee Ltd. vs. Assistant Commissioner (AA): 2009 (236) E.L.T. 425 (S.C.); Union of India vs. Mangal Textile Mills (I) Pvt. Ltd.: 2011 (269) E.L.T. 3 (S.C.); A.V. Venkateshwaran, Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani and another: 1983 (13) E.L.T. 1327 (S.C.); Harbanslal Sahnia and another vs. Indian Oil Corpn. Ltd. and others: (2003) 2 SCC 107; Kuntesh Gupta vs. Managem....

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....in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court." In Harbanslal Sahnia's case (supra), the Hon'ble Supreme Court has delineated three basic contingencies where the High Court would exercise its writ jurisdiction in spite of availability ....

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....ities i.e., the Joint Commissioner of Central Excise & Service Tax, Shillong [in WP(C) No.157 of 2015] and Additional Commissioner of Central Excise & Service Tax, Shillong [in WP(C) No.234 of 2015], had no jurisdiction at all to issue the show cause notices and thereafter, to pass the Orders-in-Original sought to be questioned in these writ petitions. The principles governing the concept of want of jurisdiction, as expounded in Ujjam Bai's case (supra), being relevant for the purpose of the question at hand, could be noticed as follows:- "15...... It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to wrong conclusion whether it is wrong in law or in fact..............A tribunal may lack jurisdiction if it is improperly con....

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.... is of such a hardship that may result in depriving them access to the appellate forum. The other suggestion about the Appellate Authority having taken a particular view of the matter has only been noted to be rejected. A particular view by the Appellate Authority in a given case, if not of the support of the petitioners, by itself, cannot be a ground for the petitioners to avoid approaching the said Appellate Authority. The Appellate Authority, in the course of exercise of its jurisdiction, is required to take a particular view on the facts of a given case; and the petitioners cannot be allowed to bypass the remedy of appeal merely because the view taken by the Appellate Authority in another case does not appear palatable to them. This is moreover for the reason that in the Scheme of the Act of 1944, specific machinery for dealing with grievances has been provided, with multiple appeals. There appears no reason that the petitioners would avoid taking recourse to such remedies. Of course, recourse to such remedies is required to be taken in accordance with law. For what has been discussed hereinabove, when we find that an efficacious remedy of statutory appeal is available in....