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M/s Gambhir Construction Company Lko. Thru Its Prop. Versus Union Of India Thru Its Secy. Deptt. Of Revenue And Ors.

2016 (2) TMI 809 - ALLAHABAD HIGH COURT

Jurisdiction to raise service tax demand - the appeal was entertained in which the challenge was raised against the same assessment order which is under challenged in this writ petition. - The petitioner has again come up before this Court raising a direct challenge to the assessment order which has been subject matter of appeal. - Held that:- The issue of jurisdiction to impose service tax can also be raised and decided in the appeal itself. The petitioner did avail the remedy of appeal to avoi .....

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ounsel for the respondent nos. 2, 3 & 4 and learned Additional Chief Standing Counsel for the respondent no. 5. The sixth respondent does not appear to have been served or any counsel having received notice. This writ petition prays for a certiorari to quash the impugned demand-cum-show cause notice dated 21/22.04.2010 including the original assessment order which was passed on 30.11.2010 contained in annexure nos. 1 and 2 respectively to the writ petition. Learned Counsel has vehemently urg .....

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d in the aforesaid decision. It is in the said background, Sri Sinha states, that the present writ petition is maintainable to quash the aforesaid demand notice and also the assessment order passed by the respondent - Excise Department. The contention is that any intervening proceedings will not take away the right of the petitioner to maintain this writ petition under Article 226 of the Constitution of India. The petition has been opposed by Sri Chauhan contending that the petitioner in this ve .....

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ot of the jurisdiction, has already been settled in several decisions by the Supreme Court, holding that in the matter arising out of jurisdictional authority, such challenge is permissible through a writ petition under Article 226 of the Constitution of India. Reliance has been placed the following judgments :- 1. AIR (38) 1952 SC, the United Commercial Bank Ltd. vs. Their Workmen. 2. AIR 1962 SC 1810, Khardah Company Ltd. vs. Raymond & Co. (India) Private Ltd. 3. AIR 1963 SC 1685, Union of .....

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ted by decisions relied upon him for the simple reason that the same very assessment, quashing of which has been sought for in the present writ petition, was made subject matter of appeal. The appeal was not being entertained inasmuch as the petitioner was not inclined to make a pre deposit on account of his financial position. He filed an Excise Appeal No. 29 of 2014, under Section 35 (G) of the Central Excise Act, 1944 questioning the said requirement of the payment of entire pre deposit on th .....

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