MADURA COATS (P.) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE order dated 24.6.2014 passed by the learned Single Judge passed in W.P. Nos. 43152/2011 & 43201 -204/2011 is the subject matter of these intra -Court appeals. The appellant -writ petitioner was issued with a show -cause notice dated 12.10.2011 by the second respondent -Commissioner of Service Tax, Bangalore demanding certain amount of service tax. The said show -cause notice dated 12.10.2011 was assailed by the appellant herein before the learned Single Judge by filing the writ petitions. The writ petitioner also sought for declaration that the Explanation to Section 65(55a) r/w. Section 65(55b) and Section 65(105)(zzr) of the Finance Act, 1994 pertaining to the definition of 'Intellectual Property Right' and 'Intellectual Property Service', is in violation of Articles 14, 19(i)(g), 265 and Entry 54 of List II of the VII Schedule to the Constitution of India. The learned Single Judge has refused to go into the merits of the matter by concluding that it is open for the writ petitioner to reply to the show -cause notice.

(2.) VIRTUALLY what was challenged before the learned Single Judge is the notice issued by the Commissioner of Service Tax, Bangalore. Hence, it is open for the writ petitioner to whom the show -cause notice is issued, to file statement of objections and to have its say in the matter. In the case of Whirlpool Corpn. v. Registrar of Trade Marks : [1998] 8 SCC 1, the Apex Court has opined that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. The High Court, having regard to the facts of case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy, has been consistently held by the Supreme Court, not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction.