BIJU DANIEL Vs. COMMISSIONER OF CENTRAL EXCISE (APPEALS)

JUDGEMENT

(1.) This writ petition is filed challenging Exts.P4 and P7 and seeking a declaration that the petitioner is not liable to pay service tax for the period 2009 -2010 to 2013 -14, being entitled for exemption as per Ext.P3 notification.

(2.) The short facts involved in the writ petition would disclose that the petitioner, a PWD Electrical contractor was issued with a summons dated 14/06/2011, calling him for certain details. Being unaware of the sales tax liability for the works undertaken by him, no such explanation was offered by the petitioner. During the period between 2009 -10 to 20113 -14, petitioner had carried out work of erection, commissioning and installation of electrification works of PWD Department for an amount of Rs.1,37,21,579/ -. The 3rd respondent issued a demand to the petitioner under Section 73(1) of the Finance Act, 1994 assessing on the petitioner service tax payable at Rs.4,87,743/ -. Petitioner was issued a show cause notice dated 11/06/2014 as Ext.P1. It is stated that though the petitioner did not receive Ext.P1, on information received from the respondent's office, he explained to the authorities about the matter and however he did not file any reply within the time specified. Petitioner however sent a letter dated 25/08/2014 explaining the particulars relating to the work undertaken by him. Petitioner relied upon a Notification No.25/2001 ST dated 20/6/2012 by which the service of erection/installation/commissioning provided to the Government, a local authority, or a governmental authority in relation to a structure predominantly for use as an educational institution or clinical establishments are wholly exempted from levy of service tax. Therefore, according to him, he is not liable to pay service tax for the period 2012 -13 and 2013 -14 amounting to Rs.64,84,417/ -. However, the 2nd respondent passed Ext.P4 order confirming the penalty of Rs.4,84,473/ -. Petitioner deposited a total amount of Rs.5,00,015/ -. It is stated that though an appeal was provided against the impugned order, petitioner could not file an appeal within the specified time. Therefore, an appeal was filed on 08/01/2016 before the Commissioner of Central Excise (Appeals) with a petition to condone delay. Ext.P6 is the memorandum of appeal. So far the appeal has not been considered. In the meantime, 3rd respondent is compelling the petitioner to remit the penalty and interest amounts as directed in Ext.P4 order. Ext.P7 is the said demand dated 01/02/2016. It is contended that the 3rd respondent has no right to take further steps against the petitioner during the pendency of the appeal and hence the petitioner has sought for the above reliefs.

(3.) Counter affidavit is field on behalf of respondents 1 to 3. It is stated that the writ petition is not maintainable since the petitioner had an alternate remedy of filing an appeal with the appellate authority within the time limit, instead, he has preferred the appeal after a lapse of one year which is beyond the condonable time as per Section 85 of the Finance Act, 1994. It is stated that the petitioner appeared before the 3rd respondent in response to the summons. But, he did not produce the balance sheet and profit and loss account. Whereas he has provided only a copy of the bank statement. On receiving the show cause notice dated 11/6/2014, petitioner appeared and submitted a written submission which was also personally heard. Hence it is submitted that there is no violation of the principles of natural justice. It is further submitted that the petitioner had not produced any documentary proof to show that the work undertaken by him are mostly PWD works in clinical establishments like leprosy sanatoriums, medical college, District Courts, class rooms etc. which are wholly exempted from levy of service tax as per Ext.P3 notification. The adjudicating authority therefore considered all the submissions made in the written reply and passed the impugned order.