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2017 (8) TMI 839 - HC - Service TaxMaintainability of petition - Alternative remedy - Rule 2A of the Service Tax (Determination of Value) Rules, 2006 - Works Contract Service - composite contract - Held that: - the matter was remanded to the Adjudicating Authority on the sole ground that the authority referred to a judgment of the Supreme Court, Dy. Commissioner of Sales Tax (Law) vs. Advani Coorlikon (P) Ltd. [1979 (10) TMI 90 - SUPREME COURT OF INDIA], which was overruled by the Larger Bench of the Supreme Court. The Court made it clear that setting aside the impugned order will not be taken as a reflection on the merits of the matter. In paragraph 12 of the order, dated 05.12.2016, the Court has summarised the submissions and while doing so, it has made an observation that the question whether the impugned transaction is composite in nature as alleged by the respondent is a mixed question of fact and law. The Court rendered a finding that the impugned transaction whether it is a composite in nature or not, is a mixed question of fact and law. This finding had been accepted by the petitioner, as the petitioner appears to have not canvassed the matter on merits, though the Court observed that an overruled judgment of the Supreme Court has been relied on. Apart from that, the Court also held that it cannot be known as to what extent, the first respondent was influenced by referring to an overruled judgment and as to how the overruled judgment has had a bearing on the manner in which the subject contracts have been viewed. Thus, the petitioner did not canvass the merits of the case and appears to have been satisfied with the order passed by the Court remanding the matter for denova consideration to consider as to what extent the Adjudicating Authority was influenced by the ratio of the overruled judgment in the case of Kone Elevators India Pvt., Ltd.,[2005 (2) TMI 519 - SUPREME COURT OF INDIA], did it have a bearing on the manner in which the subject contracts have been viewed. When the Court at the very threshold held that question as to whether the transaction is composite in nature or not, is a mixed question of fact and law, and it would be the answer to the petitioner's present challenge of the impugned order raising factual questions. The Tribunal being the last fact finding authority in the hierarchy of authorities is entitled to appreciate and re-appreciate the scope of the contract, whether it is composite in nature or otherwise and this exercise cannot be done in a Writ Petition - the petitioner cannot now canvass the merits of the case in a Writ Petition, call upon this Court to examine as to whether the transaction is composite in nature or otherwise, whether the valuation made was correct or incorrect; what is the yardstick to be applied to the sale value, etc. Therefore, the petitioner has to necessarily avail the appellate remedy and the contentions raised by the petitioner being mixed questions of fact and law cannot be adjudicated in a Writ Petition under Article 226 of the Constitution of India. Petition dismissed being not maintainable.
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