TMI Blog2014 (11) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... n of disputed questions of fact. These issues cannot be permitted to be raised for being adjudicated in a Writ Petition. Issue raised by the petitioner being an issue relating to classification, there is a clear bar of jurisdiction imposed under the statute if even entertaining an appeal as against the order passed by the Tribunal as the appeal shall lie only to the Supreme Court. - Decided against assessee. - W. P. No. 1276 of 2010 - - - Dated:- 17-11-2014 - T. S. Sivagnanam,JJ. For the Petitioner : M/s. Pushya Sitaraman Sr.counsel for Mr. Arunkurian Joseph For the Respondents : Mr. V. Sundareswaran ORDER The petitioner seeks for issuance of a Writ of Prohibition to prohibit the respondents from levying and collecting service tax on the transfer of right to use copyright. 2. The petitioner is engaged in the business of marketing and distribution of various consumer and pharmaceutical products and it has registered its logo 'ttk' as an 'artistic work' under the Copy Rights Act, 1957, and has permitted the same to be used by its group companies. The petitioner has entered into agreements with its group companies, who have been permitted to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as the petitioner's logo has been registered as a copyright, it falls outside the purview of the Finance Act, as amended in 2007 and no service tax can be demanded on the royalty received by the petitioner from its group companies, who have been permitted to use the logo. The learned counsel placed reliance on the decision of the Hon'ble Supreme court in the case of Isha Beevi Ors., vs. Tax Recovery officer and Ors., reported in [1975] 101 ITR 449, for the proposition that a Writ of Prohibition is maintainable, when there is total absence of jurisdiction to proceed on the part of the Officer or the Authority. 4. The learned Standing counsel appearing for the respondents resisted the petitioner's contention broadly raising two grounds. Firstly by contending that the Writ Petition is not maintainable. It is submitted that after issuing show cause notice to the petitioner and affording opportunity, order-in-original No.16 of 2009, dated 15.05.2009 was passed by the second respondent confirming the service tax liability of a sum of ₹ 1,82,19,236/- for the period from 10.09.2014 to 30.06.2007. As against the said order, the petitioner preferred appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials placed on record. 7. Two issues fall for consideration in this Writ Petition, the first issue is regarding the maintainability of the Writ Petition and the second issue is as to whether on facts could a Writ of Prohibition be issued as sought for by the petitioner. It is not in dispute that a show cause notice was issued to the petitioner on 13.10.2009 stating that on verification of the records, it was noticed that the petitioner entered into agreement with group companies permitting them to use the ttk logo on packages, cartons, containers etc., and in terms of the agreement, the petitioner collected royalty charges and the petitioner did not pay service tax on the royalty charges on the ground that the logo is registered as an artistic work under the Copyrights Act, 1957 and hence, the excluded from the scope of Immovable Property Right service under the Finance Act. After referring to the term artistic work as defined under Section 2(c) of the Copy Right Act and the definition of the word 'adaptation' as defined under 2(a)(ii) of the Copy Right Act, it is stated that the logo ttk has been approved under the Copy Right Act as 'artistic work' and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded at the applicable rate and why the penalty should not be imposed. 9. It is not in dispute that the notice demanding service tax for the period from 10.09.2004 to 30.06.2007, (earlier period), prior to the period for which notice dated 13.10.2009 was issued, culminated in an order-in-original No.16 of 2009, dated 15.05.2009, by which the service tax payment of ₹ 1,82,19,236/- was confirmed. The petitioner preferred an appeal before the CESTAT as against the said order on 04.08.2009 and the appeal was taken on file as Appeal No.ST/440/2009. It is stated by the respondent that when the appeal was pending before the CESTAT, the petitioner without disclosing the same, filed this Writ Petition projecting as if the cause of action to file the Writ Petition arose after the issuance of the show cause notice dated 13.10.2009, when infact the appeal for the earlier period was pending before the Tribunal. On a perusal of the affidavit filed in support of the Writ Petition, it appears that the petitioner has not disclosed the pendency of the appeal for the earlier period and proceeded to seek for issuance of a Writ of Prohibition alleging that the respondent has no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. 12. In the case of United Bleachers Ltd., (supra), a similar issue arose as to whether a Writ Petition could be entertained without exhausting the alternate remedy, when the Writ Petition was admitted and pending for several years. The contention raised by the petitioner therein was rejected and it was held that the Writ Petition was not maintainable on the ground that under Section 35G of the Central Excise Act, there is a specific embargo for this Court to entertain the appeal with regard to dispute relating to the determination of any question having a relation to the rate of duty of exercise or to the value of the goods for the purpose of assessment. The same principle would equally apply to the case on hand, the only difference being the present proceedings are under the Finance Act. The issue relating to rate of duty whether the transaction is amenable for taxation under the Finance Act are classification issues, which cannot be adjudicated by this Court by exercise of its power under Article 226 of the Constitution. 13. The Hon'ble Supreme Court in the case of Union of India vs. Guwahati Carbon Ltd., (supra), held that the High Court ought not to have entert ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
