AI Drafter 
TaxTMI 
TaxTMI 
2021 (3) TMI 966
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....ed to 25%, provided the service tax amount demanded is paid within 30 days from the date of receipt of the Order-in-Original and a penalty of Rs. 10,000/- was also imposed under Section 77(2) of the Act. 3. The writ petition was entertained and interim order was granted on 04.05.2018 following an earlier order in W.M.P.No.35103 of 2016 in W.P.No.41112 of 2016 dated 23.11.2016. The interim order was in force from 2018 onwards. The respondent-department did not file counter affidavit. The writ petition was heard by the learned Single Bench and has been dismissed on the ground that the same cannot be entertained in the light of the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada Vs. Glaxo Smith Kline Consumer Health Care Limited (Civil Appeal No.2413 of 2020 dated 06.05.2020). 4. We had an occasion to consider the correctness of similar orders, where writ petitions were dismissed, following the said decision of the Hon'ble Supreme Court and held that there is no absolute bar for the Writ Court to test the correctness of the Order-in-Original, if the challenge falls under any one of the exceptions, which have been drawn by th....
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....e self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person..... 15. ........The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner chooses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. ...... 19....
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....case of Mafatlal Industries Ltd. Vs. Union of India [reported in 1997 (5) SCC 536] wherein it was held that the jurisdiction of the High Courts under Article 226 and that of the Hon'ble Supreme Court under Article 32 of The Constitution of India could not be circumscribed by the provisions of the Enactment (Central Excise Act) and they would certainly have due regard to the legislative intent evidenced by the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the Act. Further, the Court directed that the writ petition would be considered and disposed of in the the light of and in accordance with the provisions of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating it. 9. In the light of the above, we have no hesitation to hold that the observation of the learned Single Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order. 10. Ne....
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....n our considered view, is a serious issue because the dealer has taken a specific stand that the software is being used in the manufacture. Furthermore, the dealer's case is that in their registration certificate issued under the CST Act, as mentioned in Clause 9 in the annexure, computer software is also one of the items mentioned in their certificate of registration. Had an opportunity of hearing been granted to the dealer, especially when the Assessing Officer took more than one year to complete the assessment, the dealer would have explained the same. That apart, the proposal to levy penalty was made by an officer, who was not the officer, who passed the order dated 30.1.2014, as there has been a transfer of the officer and the new officer took over charge. This is also one more aspect, which should have weighed in the mind of the Assessing Officer to afford an opportunity of personal hearing because the officer, who completed the assessment, was not the officer, who made the proposal to levy penalty. 15. It is also seen that even in respect of the assessment year 2013-14, no opportunity of personal hearing was granted to the dealer. 16. Thus, we are of th....
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....ing before the learned Single Bench in other writ petitions as well and the appellant herein is the petitioner in those writ petitions, namely W.P.Nos.24483 of 2016, 41112 of 2016 and 18838 of 2020. 6. Mr.Joseph Prabakar, learned counsel for the appellant submitted that the issue raised by the appellant in the writ petition is squarely covered in favour of the appellant by the decision of the Hon'ble Supreme Court in the case of State of West Bengal Vs. Calcutta Club Limited [(2019) 29 GSTL 545], wherein it was held that incorporated clubs or associations are not liable to pay service tax both for the period prior to 1st July 2012 and for the period post 1st July, 2012 under the new Section 65B introduced in Finance Act, 1994. 7. The learned counsel has drawn our attention to other decisions as well, namely Ranchi Club Ltd. Vs. Chief Commissioner of Central Excise & Service Tax [(2012) 26 ITR 401 (Jhar)] and Sports Club of Gujarat Ltd. Vs. Union of India [(2013) 31 STR 645 (Guj), which were rendered much earlier to the decision of the Hon'ble Supreme Court in Calcutta Club Ltd., which were confirmed in the said decision. Further, the learned counsel submitted that by ....