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2013 DIGILAW 629 (KAR)

H. M. Trust v. Union of India

2013-06-04

ARAVIND KUMAR

body2013
ORDER Aravind Kumar, J.—Petitioner is seeking for issue of certiorari to declare the provisions of Finance Act, 1994 as amended by Finance Act, 2008 and Finance Act, 2010 contained under Section 65(105)(zzzz) and Section 65(90a) as null and void, ultra vires of Constitution of India and consequently declare all notifications and circulars issued pursuant to said Finance Act, 2007, 2008 and 2010 as null and void and inoperative. Petitioner is also seeking for issue of writ of certiorari to declare the provision contained in Section 76(6)(h) of the Finance Act, 2010 as null and void, arbitrary and ultra vires of Constitution of India and for quashing of proceedings initiated against the petitioner pursuant to these provisions and summons dated 25-8-2011 bearing C, No. IV/06/549/2009 ST-AE-II, Annexure-B issued thereunder as illegal, void ab initio and unconstitutional. Respondent has filed a detailed statement of objections denying the averments made in the petition. Respondent has as also filed I.A. No. I of 2011 seeking for vacating of stay granted by this Court on 7-9-2011. 2. I have heard the arguments of Sri Abhinav R., learned Counsel appearing for petitioner, Sri Jeevan J. Neeralagi, learned Panel Counsel appearing for R2 and R3 and Sri B. Pramod, learned Panel Counsel appearing for R1. 3. Similar contentions had been raised in the W.P. No. 41125 of 2010, dated 15-4-2013 (VIR Retail Private Limited, Bangalore and Another v. Union of India and Others) and other connected matters filed by similarly placed persons. Co-ordinate Bench of this Court after examining the contentions has issued the following directions: 8. In the circumstances, it is reasonable to direct the petitioners to furnish security to the satisfaction of the jurisdictional Commissioner of Service Tax, insofar as the arrears of tax prior to 30th September, 2011 and for the petitioners to await the decision of the Apex Court. 9. In the result, the applications are accordingly ordered. Writ petitions are disposed of subject to the decision of the Apex Court and reserving liberty to the petitioners to make necessary applications to recall the order and seek directions, if any, pursuant to the decision of the Apex Court. 4. Learned Counsel appearing for respondent-Revenue does not dispute this fact. 9. In the result, the applications are accordingly ordered. Writ petitions are disposed of subject to the decision of the Apex Court and reserving liberty to the petitioners to make necessary applications to recall the order and seek directions, if any, pursuant to the decision of the Apex Court. 4. Learned Counsel appearing for respondent-Revenue does not dispute this fact. Said directions issued would equally apply to the petitioner herein and accordingly this writ petition is also disposed of by holding that subject to decision of the Apex Court and reserving liberty to petitioner to make necessary application to recall the order if any pursuant to decision of the Apex Court. 5. One more issue involved in the present writ petition which was not subject-matter of consideration by Coordinate Bench relates to extending Cenvat Credit to petitioner which is claimed by it. It is the contention of Sri Abhinav R., learned Counsel for petitioner that in respect of amounts calculated by petitioner the same has been remitted to respondent and in respect of petitioners entitlement for Cenvat credit having not been considered petitioner is entitled for the same. Per contra, Sri Jeevan J. Neeralagi, learned Counsel appearing for revenue would contend that amounts in respect of which petitioner is not entitled for Cenvat credit has also been included in the claim made before the authorities and this aspect has been taken note of by the authorities and Cenvat credit in respect of ineligible credits has not been allowed and as such question of granting Cenvat credit on ineligible credits having been claimed by petitioner does not deserve to be allowed. Parties have produced voluminous documents. Petitioner has claimed Cenvat credit in respect of certain amounts. Learned Counsel contends that authorities were required to consider the same which is seriously disputed by learned Counsel appearing for revenue. In that view of the matter it would be appropriate to direct the petitioner to appear before the Commissioner of Service tax (second respondent herein) and put forth its claim if any seeking for entitlement of Cenvat credit and in turn second respondent shall examine the claim of petitioner under all heads and pass orders on merits and in accordance with law. It is made clear that no view is expressed with regard to merits of the claim made by the petitioner insofar as entitlement of Cenvat credit by it. Same is kept open. It is made clear that no view is expressed with regard to merits of the claim made by the petitioner insofar as entitlement of Cenvat credit by it. Same is kept open. Petitioner shall appear before the second respondent on 24-6-2013 without waiting for any further notice. Second respondent shall consider the claim on merits and second respondent is at liberty to examine all the issues and pass orders thereon All contentions are left open in this regard to be adjudicated before second respondent. Second respondent would also be at liberty to examine the claim of petitioner not only with regard to Cenvat credit but with regard to all other claims put forth. Ordered accordingly. No costs.