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BIJU DANIEL Versus COMMISSIONER OF CENTRAL EXCISE (APPEALS) , KOCHI AND OTHERS

2016 (7) TMI 639 - KERALA HIGH COURT

Construction services - structure predominantly for use as an educational institution or clinical establishments - claim of exemption under Notification No.25/2001 ST dated 20/6/2012 - principles of natural justice - Held that:- Materials relied upon by the petitioner indicate that the petitioner has raised certain valid contentions especially in regard to the penalty that had been imposed under Section 76 as well as under Section 78. That apart, he claims benefit under a notification by which a .....

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ground of violation of the principles of natural justice. Hence a fresh opportunity is to be granted to the petitioner to defend the proceedings pursuant to the show cause notice issued against him. - Decided in favor of petitioner. - W.P.C.No.6314 of 2016 - Dated:- 5-7-2016 - A.M.SHAFFIQUE, J FOR THE PETITIONER : ADVS.SRI.P.SREEKUMAR SRI.S.GANESH FOR THE RESPONDENT : ADV. SRI.RANJITH JACOB KOSHY, SC, CENTRAL BOARD OF EXCISE SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX JUDGMENT This writ petition is .....

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d by the petitioner. During the period between 2009-10 to 20113-14, petitioner had carried out work of erection, commissioning and installation of electrification works of PWD Department for an amount of ₹ 1,37,21,579/-. The 3rd respondent issued a demand to the petitioner under Section 73(1) of the Finance Act, 1994 assessing on the petitioner service tax payable at ₹ 4,87,743/-. Petitioner was issued a show cause notice dated 11/06/2014 as Ext.P1. It is stated that though the petit .....

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overnmental authority in relation to a structure predominantly for use as an educational institution or clinical establishments are wholly exempted from levy of service tax. Therefore, according to him, he is not liable to pay service tax for the period 2012-13 and 2013-14 amounting to ₹ 64,84,417/-. However, the 2nd respondent passed Ext.P4 order confirming the penalty of ₹ 4,84,473/-. Petitioner deposited a total amount of ₹ 5,00,015/-. It is stated that though an appeal was .....

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d that the 3rd respondent has no right to take further steps against the petitioner during the pendency of the appeal and hence the petitioner has sought for the above reliefs. 3. Counter affidavit is field on behalf of respondents 1 to 3. It is stated that the writ petition is not maintainable since the petitioner had an alternate remedy of filing an appeal with the appellate authority within the time limit, instead, he has preferred the appeal after a lapse of one year which is beyond the cond .....

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justice. It is further submitted that the petitioner had not produced any documentary proof to show that the work undertaken by him are mostly PWD works in clinical establishments like leprosy sanatoriums, medical college, District Courts, class rooms etc. which are wholly exempted from levy of service tax as per Ext.P3 notification. The adjudicating authority therefore considered all the submissions made in the written reply and passed the impugned order. 4. One main contention urged by the pet .....

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g. It is stated that no opportunity was given for a hearing and the order had been passed. In the counter affidavit, it is stated that no documents were produced before the adjudicating authority and that the petitioner was given sufficient opportunity for a hearing. It is stated that personal hearing was granted on 17/07/2014. He was also given extension of time to submit further reply which he availed off and filed Ext.P2. Thereafter, the order had been passed. Perusal of Ext.P2 would show tha .....

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was filed, no opportunity was given for hearing, despite the specific request made by the petitioner that he should be heard in the matter. It is, in the said circumstances, that the impugned order has been passed imposing on the petitioner a penalty of ₹ 4,87,473/- under Section 78 of the Act with interest from the due date till date of payment. The materials placed on record do indicate that the petitioner was not given an opportunity for hearing though a request was made in that regard. .....

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