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TMI Blog2017 (10) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding services under the taxable category of construction of residential complex . (ii) Based on the intelligence gathered by the respondent/revenue, show cause notice dated 07.09.2012 was issued to the appellant / assessee pertaining to the period 2008-09 to 2011-12 for making a demand of service tax of Rs. 5,41,01,083/- (Rupees Five Crore Forty One Lakh One Thousand and Eighty Three only) with interest and penalty. (iii) In response, the appellant / assessee had sent reply to the show cause notice on 25.2.2013. Thereafter, personal hearing was given on 26.2.2013. (iv) After analysing the input gathered by the revenue and the reply given by the appellant / assessee, final Order-in-Original in Revenue No.06 of 2013 dated 31.5.2013 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed along with interest. However, insofar as the penalty is concerned, it was imposed only in respect of second show cause notice i.e., dated 13.2.2015. Assailing the said Order-in-Original passed by the Adjudicating Authority, dated 24.4.2017, the appellants filed writ petition aforesaid in W.P.No.18354 of 2017 seeking for a writ of certiorari to call for the records of the said impugned order dated 24.4.2017 and quash the same. (xii) The learned Judge on hearing the learned counsel appearing for the assessee as well as the revenue has dismissed the said writ petition on the ground of maintainability by the impugned Judgment dated 19.7.2017. Aggrieved over the said order, the present appeal has been filed. 3. Mr.T.Ramesh, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order, i.e, the Order-in-Original passed by the Adjudicating Authority is against the concerned provisions of Finance Act and therefore, on that score, the writ petition filed by the appellant herein, is very well maintainable. Therefore, the learned counsel would state that the reasoning given by the learned Judge in dismissing the writ petition that the appellant should have approached the appellate forum for filing a statutory appeal i.e, before the Tribunal / CESTAT, under the provisions of the Act, is also erroneous. 6. Per contra, Mrs. R.Hemalatha, the learned standing counsel appearing for the respondent / revenue would submit that under Section 65(91 a) of Chapter V of the Finance Act, 1994, which in fact has been extracted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dential complex. 9. The learned standing counsel would also state that, on facts it was found that the entire project developed as a complex by the appellant / assessee was consisting of 416 numbers of individual houses within a common layout for which approval was obtained from the concerned authority and all the individual buyers were provided with various common facilities. 10. Therefore, the learned standing counsel would state that in view of the factual findings, the assessment made as confirmed in the Order-in-Original which was impugned before the writ Court, is fully justifiable and therefore, the appellant cannot make out a case that too for invocation of Article 226 of the Constitution of India for issuance of writ, before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled that when factual findings are to be assailed where, effective alternative statutory appellate remedy is available, the same cannot be by-passed by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India.
15. Therefore, we are of the considered view that the reasoning given by the learned Judge, only on the ground of maintainability to dismiss the writ petition with the liberty to the appellant / assessee to approach the CESTAT, is fully justifiable.
16. In view of the above said facts and circumstances, we are not inclined to entertain this appeal. Therefore, we dismiss the same at the threshold. However, there shall be no orders as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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