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2015 DIGILAW 1394 (RAJ)

Purav Sainik Kalyan Sahkari Samiti Ltd. v. State of Rajasthan

2015-07-24

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the action of the respondents in first passing the order Annexure-10 in assessing the petitioner for Service Tax and creating a demand of Rs. 13,45,763/- and further imposing liability of interest & penalty and consequential attachment of its bank accounts. 2. The petitioner was issued a show cause notice by the Additional Commissioner, Central Excise on 11.10.2012 calling upon the petitioner to show cause as to why action against the petitioner as indicated in the notice may not be taken. 3. The petitioner filed reply dated 15.9.2012 indicating that its turnover was less than Rs. 9 lacs, the petitioner works on donation and does not work on profit motive. 4. Thereafter, the petitioner was given notice for personal hearing dated 16.1.2014, to which again a reply dated 21.7.2014 was given by the petitioner, inter-alia, indicating that there was nothing due in the petitioner. 5. Where after, by order dated 7.7.2014 passed by the Commissioner, Central Excise, Jaipur-I, the demand of Service Tax for Rs. 13,45,763/- was confirmed and recovery of interest was ordered. Further the assessing authority imposed penalty under the provisions of Sections 77 & 78 of the Finance Act, 1994 ('the Act'); where after, it appears that the petitioner, instead of challenging the validity of the assessment order dated 7.7.2014 continued to persist with a respondents regarding non-applicability of the provisions. 6. By notice dated 13.3.2015 (Annex.13), the petitioner was called upon to make payment of the demand raised; where after, it appears that under the provisions of Section 87 of the Act, by notice issued to the Ganganagar Kendriya Sahakari Bank Limited, where the petitioner had its account, the bank account of the petitioner was attached by order dated 27.2.2015. 7. The attachment of the bank account has apparently prompted, the petitioner to file the present writ petition wherein the show cause notice dated 11.10.2012 (Annex.-7), assessment order dated 7.7.2014 and the attachment order dated 27.2.2015 have been questioned. 8. Learned counsel for the petitioner has made submissions on merit of the show cause notice, the assessment order and the consequential attachment order. 9. 8. Learned counsel for the petitioner has made submissions on merit of the show cause notice, the assessment order and the consequential attachment order. 9. However, it is apparent that the assessment order (Annex.11) dated 7.7.2014 passed by the Commissioner of Central Excise, Jaipur-I is appealable before the Commissioner (Appeals-I), (Central Excise, Jaipur), however, the petitioner without availing the said remedy and/or questioning or challenging the order dated 7.7.2014 (Annex.-11) for a period of over one year, only on account of attachment of the bank accounts has chosen to file the present writ petition seeking to question the show cause notice, the assessment order and the consequential attachment order. 10. Once, the assessment order dated 7.7.2014 remains unchallenged, the consequential action of the respondents in enforcing the order and seeking recovery of the dues by way of attachment of the bank account cannot be questioned. 11. Learned counsel with reference to a order passed by this Court at Jaipur Bench in M/s. Super Ex-Servicemen Welfare Cooperative Society Ltd. v. Union of India & Ors. : SBCWP No.1834/2009 decided on 22.3.2010 has made submissions that even if statutory remedy of appeal is available to the petitioner, which the petitioner is willing to avail, the petitioner may be relegated to the said remedy, however, the petitioner's attachment of bank account may be relaxed. 12. The assessment order dated 7.7.2014 (Annex.14) is open to statutory appeal, which admittedly has not been resorted to by the petitioner and after an inordinate delay, the writ jurisdiction has been invoked, which petition in view of availability of alternative remedy is not maintainable. The petitioner may avail alternative remedy, if so advised. 13. So far as the prayer made by the petitioner regarding release of the bank account of the petitioner is concerned, the direction in the case of M/s. Super Ex-Servicemen Welfare Cooperative Society Ltd. (supra) was passed in the peculiar facts and circumstances of the case, wherein with the consent of the parties and the fact that the writ petition was pending before the Court and challenge therein pertained to applicability of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, wherein it is apparent that the petitioner therein had approached the Court with promptitude, such directions were issued. However, in view of the fact that the petitioner has chosen to approach this Court with inordinate delay against the order dated 7.7.2014 passed by the assessing authority, ex parte order ordering releasing the attachment of bank account cannot be passed. 14. In view of the above discussion, the writ petition filed by the petitioner is not maintainable, the same is, therefore, dismissed. The petitioner may avail statutory remedy of appeal available to him and if the appeal is preferred along with application under Section 5 of the Limitation Act seeking condonation of delay, the appellate authority may consider the application sympathetically.