2023 (6) TMI 1249

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....bitrary, oppressive, excessive, premeditated and without the authority of law; b) that this Hon'ble Court be pleased to issue a writ of Declaration or any other appropriate Writ, order or direction in the nature of Writ of Declaration to declare that the provisions of Section 174 of Central Goods and Services Tax Act 2017 (Exhibit B) as ultra vires the Constitutional (101st) Amendment Act, 2016, being legislative incompetent and violative of Article 14/19/265 of the Constitution. c) that this Hon'ble court be pleased to issue a writ of certiorari or a writ of Declaration or any other appropriate writ or order to quash Notification No. 14/ 2017-CE(NT) dated 09.06.2017 and Order No. 2/2019 (CGST & CX) dated 16.05.2019 (collectively enclosed as Exhibit 'D') as ultra vires the provisions of Section 3 of CGST Act, 2017 as also violative of Article 14/19 of the Constitution. d) that this Hon'ble court be pleased to issue a writ of certiorari or a writ of Declaration or any other appropriate writ or order to quash Notification No. 2/2017-CT, dated 19.06.2017 (enclosed as Exhibit 'E') as ultra vires the provisions of Section 3 of CGST Act, 2017. e) that this Hon'ble Court be pl....

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....ce Act, 1994 as also Notification No. 14/2017-CE(NT) dated 09.06.2017. It is stated that respondent no. 5-Chief Commissioner of CGST & Central Excise, Mumbai Zone assigned the adjudication of the show cause notices to respondent No. 2 for the reason that earlier officer who heard the petitioner was promoted as Principal Commissioner, CGST. 5. It appears that on 23 May, 2019 the petitioner filed additional written submissions before respondent no. 3, however, oblivious of the fact that the proceedings were in fact assigned to respondent No. 2 to adjudicate and pass final orders on the show cause notices. The petitioner thus contends that the additional written submissions in respect of all the three notices were not before respondent No. 2 in passing the final orders. By the impugned order-in-original dated 29 May, 2019 passed by respondent No. 2-Principal Commissioner, the demands as made in all three show cause notices were confirmed. 6. The petitioner has contended that respondent No. 2 merely on the basis of TDS data received from the Income Tax Department, has held that service tax as demanded was leviable as the petitioner had made entries in the profit and loss account unde....

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....(I) Pvt. Ltd. (supra) are required to be noted which read thus:- "4.6 In the case of Greenwich Meridian Logistics (I) Pvt. Ltd. [2016 (43) STR 215 (Tri.-Mumbai), the Tribunal has specifically observed as follows:- 11. Slots may be contracted for by the shipper or its agent with the shipping line through the steamer agent. Implicit is a uni-directional flow of consideration because the space belongs to the shipping line. Steamer agent or agent of shipper may earn commission in such a transaction. Leaving that situation aside, the contention of the appellant is that it is a 'multi-modal transport operator' which entails a statutorily assigned role in cross-order logistics. According to section 2 of the Multi-modal Transportation of Goods Act, 1993 (m) "multimodal transport operator" means any person who- (i) concludes a multimodal transport contract on his own behalf or through another person acting on his behalf; (ii) acts as principal, and not as an agent either of the consignor, or consignee or of the carrier participating in the multimodal transportation, and who assumes responsibility for the performance of the said contract; and (iii) is registered under sub-se....

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....Pvt. Ltd. namely in the case of Commissioner of CGST And Central Excise, Belapur in Civil Appeal No. 1479 of 2023 dismissing the revenue's appeal. Mr. Raghuraman, would thus submit that the petitioner should not be called upon to avail of the alternate remedy of an appeal, to be filed before the tribunal, as in the peculiar facts and circumstances of the case, it would be appropriate that respondent No. 2 namely the adjudicating authority needs to apply its mind to all the issues, including the additional written submissions dated 23 May, 2019, so that there would be a meaningful and appropriate adjudication of the show cause notices as per law. He would, therefore, submit that the petition be accordingly allowed in such terms. 9. On the other hand, Mr. Mishra, learned counsel for the revenue would not dispute that the additional written submissions as filed on behalf of the petitioner were not taken into consideration in passing the impugned orders and more particularly in view of assigning of the proceedings to respondent No. 2. Mr. Mishra would also not have any counter contention against the proposition as canvassed on behalf of the petitioner relying on the decision of the tr....