TMI Blog2010 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance and repairs is to be held only as prospective and for the earlier period the petitioners are bound to produce the records to the show cause notice/summons. petitioners have not suffered any legal injury so as to rush to this court even at the stage of summons issued by the authority. Even after furnishing information if the respondents erroneously taxed the petitioner, there is remedy provided by way of appeal under section 85 to the appellate authority and further appeal to the appellate Tribunal under section 86. When the Act itself is self contained Code provided for hierarchy of appeals, it is unnecessary to entertain the writ petitions at the stage of summons - W.P. (MD) NOS. 9396 of 2008 & OTHERS - - - Dated:- 21-10-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Further, since summons were issued without jurisdiction, there is no necessity to wait for any actual order to be passed by the respondents so as to avail remedy provided under the Act. The question of relegating the parties to alternative remedy is one of discretion. In some of the cases, it is stated that the respondents not contended with the issuance of summons, even during pendency of the writ petitions, have issued show cause notices to their clients. 4. Mr.G.R.Swaminathan, learned counsel for the petitioners Association had stated that his clients are seeking for a declaratory relief. Therefore, question of availing alternative remedies will not arise. 5. On notice from this court, the respondents have filed count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase that for laying new roads, widening narrow roads and for changing road surface, no service tax is payable. Maintaining the already laid roads, viz., resurfacing, renovation, strengthening, relaying, filling potholes, etc., are carried on in the already laid roads which are called road maintenance. The repair/maintaining of the existing roads are also carried out by the Highways Department or Local Bodies through contractors. In the Notification dated 27.7.2009, the maintenance and repair of roads are exempted from paying service tax. The said notification reads as follows: GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) New Delhi, the 27th July, 2009 NOTIFICATION NO.24/2009-SERVICE TAX G.S.R.(E)- In e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered for the payment of service tax. The provision of the Act is not challenged by the petitioners in these writ petitions. Hence, I am unable to uphold the contentions of the petitioners challenging the validity of the circular dated 13.2.2009 as it is a clarification of the Finance Act, 2005 and the circular dated 1.6.2005. If the Finance Act do not empower the respondents to levy service tax for maintenance of roads, repair works, the petitioners can raise the said plea, if any demand is made. At this stage the said issue is premature. If the petitioners are able to establish that there was any ambiguity in the Finance Act, definitely they will get benefit. 13. As far as the summons issued for the production of documents for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have not suffered any legal injury so as to rush to this court even at the stage of summons issued by the authority. Even after furnishing information if the respondents erroneously taxed the petitioner, there is remedy provided by way of appeal under section 85 to the appellate authority and further appeal to the appellate Tribunal under section 86. When the Act itself is self contained Code provided for hierarchy of appeals, it is unnecessary to entertain the writ petitions at the stage of summons. 9. In this context, it is necessary to refer to the recent judgment of the Supreme Court in Raj Kumar Shivhare v. Directorate of Enforcement reported in (2010) 4 SCC 772. The following passages found in paragraphs 30, 31 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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