TMI Blog2015 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjudication of the matter in accordance with law. - Therefore, as the finding of the learned single Judge as to the appeal remedy is not contrary to law and in view of the availability of efficacious alternative remedy, the stand taken by the learned single Judge to that effect warrants no interference. - appellant has to move the appellate authority and contest the matter keeping all the points raised before this Court open, including the limitation aspect, and in that event, the appellate authority shall decide the matter on merit and in accordance with law, untrammeled by any of the observations made by this Court in the earlier proceedings independently. - Petition disposed of. - W.A.(MD)No.1510 of 2011 and M.P(MD)No.1 of 2011 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) of Chapter V of the Finance Act, 1994; demanding interest at appropriate rates on the service tax amount demanded from the date on which the tax amount ought to have been paid till the date of payment, under Section 75 of Chapter V of the Finance Act, 1994; imposing penalty of ₹ 50,47,395/- (Rupees Fifty Lakhs Forty Seven Thousand Three Hundred and Ninety Five only) under Sections 76, 77 and 78 of Chapter V of the Finance Act, 1994; imposing a penalty of 13,00,000/- (Rupees Thirteen Lakhs only) under Section 78 of Chapter V of the Finance Act, 1994 on Shri.S.Muthaiah, Managing Director of the M/s.Associated, as the person in charge of, and was responsible to the company for the conduct of the business of the company at the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was obtained prior to the crucial date of 16.07.2001 and subsequently amended provision after 16.07.2001 and the procedure for making an assessment has to be followed differently during those periods, however, the show cause notice has been issued for the period from 01.04.1998 to 31.03.2003, the said order was made absolute on 04.03.2005 and thereafter, the said writ petition came to be dismissed on 10.07.2007. Aggrieved over the same, the writ appeal in W.A(MD)No.137 of 2008 was filed and since the show cause notice which was challenged in the writ petition, has been culminated into a final order passed by the original authority, on 06.06.2008, the writ appeal was dismissed as infructuous. However,the appellant has gone before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was only by way of an abundant caution and the same will not take away the right of redressal of grievances in the writ jurisdiction. He would also argue that the High Court has a wider power while exercising the jurisdiction under Article 226 of the Constitution of India, including the issue with regard to the power of limitation, but the learned single Judge has not appreciated the fact that pendency of the appeal will not take away the power of the High Court relating to the jurisdiction of the Assessing Officer. 7. The learned Counsel for the respondent/revenue would contend that the appellant has chosen to prefer the appeal, pending adjudication of the writ petition and the counter itself would inform the position as on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 06.06.2008 passed by the Additional Commissioner of Central Excise, Trichy and the same is still pending decision. The learned single Judge found that though the writ petitioner having availed his remedy of appeal, it was not clear as to why he had challenged the original order impugned in the writ petition and that when the Act provided for an efficacious remedy, the question of entertaining the writ petition under Article 226 of the Constitution of India, would not arise. 11. In this context, it is just and proper to refer to Section 73 of the Act hereunder: 73. Value of taxable services escaping assessment, (1) If- (a) the Assistant Commissioner of Central Excise or, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the period of five years or one year, as the case may be, under this section. 12. The learned Senior Counsel for the appellant pointed out the question of limitation will bar the respondent from proceeding with the demand of the service tax, as per the provision under Section 73 of the Service Tax Act and in case, clause (b) is followed, it is one year from the relevant date of service of notice on the person. He, therefore, submitted that the above provision would make it clear that there may not be any demand after the limitation prescribed and it is barred by limitation and that aspect has not been looked into by the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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