TMI Blog2014 (5) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... er be agitated before this Court at this distance of time; is the point to be considered. Obviously, the impugned orders (Exts.P3 and P4) are dated 24.05.2012 and 23.08.2012 respectively, whereas the writ petition has been filed only about 1= years after passing the said orders. This being the position, it cannot but be held, that the petitioner has not approached this Court within a reasonable time, so as to call for interference by this Court in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India. - Decided against assessee. - WP (C). No. 30612 of 2013 - - - Dated:- 3-2-2014 - P. R. Ramachandra Menon,JJ. For the Appellants : Sri V. M. Kurian, Sri Mathew B. Kurian, Sri K. T. Thomas, Sri N. Sunil and Sri. Isac T. Paul For the Respondent : Sri. Thomas Mathew Nellimoottil JUDGMENT P. R. Ramachandra Menon, J. Exts.P3 and P4 orders, to the extent they make the petitioner liable for 'Service Tax' under the heads of : a) Renting of Immovable Property, b) Collection of Bus stand Fee and c) Collection of Advertisement Tax are under challenge in this writ petition, contending that they are per se wrong and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.8,336/- and Secondary and Higher Education Cess Rs.3,372/-) being the non paid Tax and Cess under Business Support Services during the period 2007-08 to 2010-11 under Section 73(2) of Finance Act, 1994 read with Rule 6 of Finance Rules 1994. iv) In confirm the demand of Rs.49,605/- (Rupees forty nine thousand six hundred and five) only (ST Rs.48,229/-, Education Cess Rs.964/- and Secondary and Higher Education Cess Rs.412/- ) being the non paid tax and Cess under Sale of Space or Time for Advertisement Services during the period 2007-08 to 2010-11 under Section 73(2) of Finance Act, 1994 read with Rule 6 of Service Tax Rules, 1994. v) I impose a penalty on the noticee under Section 76 of Finance Act calculated @ Rs.100/- per day starting the due date till 17.04.2006 and thereafter i.e., from 18.04.2006 to 10.05.2008 calculated @Rs.200/- for every day or 2% of Service Tax per month which ever is higher, subject to ceiling that the total amount of penalty payable under Section 76 shall not exceed the Service Tax, Education Cess and Secondary and Higher Education Cess payable for the period. vi) I impose a penalty of Rs.5,000/- (Rupees five thousand only) on the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, or even within the extended time, offering any satisfactory explanation for the delay. By virtue of the law declared by the Apex Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [(2008) 3 SCC 70] and reiterated in Amchong Tea Estate v. Union of India [2010 (257) E.L.T. 3 (SC) and also several other decisions rendered by this Court on the point, it is contended that, once the statutory period to file appeal is over, the party cannot be permitted to resurrect the cause by invoking the discretionary remedy under Article 226 of the Constitution of India. 6. Heard Sri.V.M.Kurian, the learned counsel for the petitioner and Sri.Thomas Mathew Nellimoottil, the learned standing counsel for the respondents at length. The learned counsel for the petitioner submits that the first relief sought for, is for a declaration, that the petitioner is not liable for payment of Service Tax on Bus stand fee, Advertisement tax, and fee collected on letting out of immovable property. The decision rendered by a Division Bench of this Court, reported in M/s.Panopharam v. Union of India [ILR 2010 (2) Kerala 909] is sought to be relied on to contend that the writ petition is ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner sought for exemption from the liability till 2011-12, also with reference to the probable audit objections. The petitioner has given the particulars of remittance already made, in the opening paragraph of Ext.P2, referring to the total payment Rs.5,97,030/-; simultaneously adding that steps are being taken to deposit the balance amount in connection with the instance of letting out of the shop rooms in different buildings belonging to the petitioner. 10. As mentioned above and as discernible from the materials on record, Ext.P2 reply submitted by the petitioner was considered and the assessment was finalised as per Ext.P3 order dated 24.05.2012; followed by Ext.P4 order dated 23.08.2012 passed in rectification of the error apparent on the face of the records; whereby the liability to satisfy 'interest' under Section 75 of the Finance Act, 1994 was also added on. The rights and liberties of the petitioner to file an appeal under Section 85 of the Finance Act, 1994 before the Commissioner of Central Excise (Appeals), also referring to the time span stand clearly incorporated in paragraphs 1 and 2 of the Ext.P3 order. Admittedly, the petitioner did not choose to conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench of this Court in M/s. Panopharam v. Union of India [ILR 2010 (2) Kerala 909] is that, writ petition can be entertained even if the alternate statutory remedy had become time barred, provided the petitioner is able to establish a justifiable right. If the writ petition raises issues on which ordinary relief could not be given by the statutory authority, then, the fact that writ petition has been filed beyond the period prescribed under the Statute, cannot be a ground for dismissal of the writ petition. Referring to the facts of the case, as disclosed from paragraph 3 of the judgment (non-filing of the statutory appeal under Section 85 of the Finance Act, 1994 within the prescribed time), the Bench observed in paragraph 24 of the above verdict, that the reliefs sought for in the said writ petition were reliefs which ordinarily could be granted by the appellate authority and therefore, there was no extraordinary situation for invoking the power under Article 226 of the Constitution of India, even if the writ petition was filed within the period of limitation. It was accordingly, that interference was declined and the writ petition was dismissed. This Court finds that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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