TMI Blog2019 (8) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the authority being without jurisdiction and not on the basis of the status of the party moving the Court. To decide on the basis of the status of the party would be the very antithesis of the rule of law, viz. equality before the law, in the absence of any statutory distinction. The fact that the Petitioner is a Limited Company, has shares distributed in their entirety between the Central and State Governments does not warrant a different treatment under the Act. There is no reason, at this stage, to set aside the order of the Commissioner and restore the show cause notice to Commissioner so as to only compel the Revenue to follow the Master Circular and keep the show cause notice in abeyance. Question of tax on the entire freight having been collected - HELD THAT:- It is not open to the Revenue to collect again a part of the consideration as service tax. This is an issue, which is best left to the appellate authority to deal with. It is an issue on merits. Therefore, no occasion to entertain this petition can arise. In these circumstances, we are not exercising our extraordinary jurisdiction to entertain this petition. Thus, petition dismissed. However, we make it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the activity carried out by the petitioner is identical to M/s. Bharuch Dahej Railway Co. Ltd. and the Revenue has accepted the order dated 25th January, 2016, then there is no reason to treat the petitioner differently. 5. At this, Mr. Dwivedi, learned Counsel appearing in support seeks four weeks time to take instructions and to file an affidavit, if necessary. 6. Stand over to 19th October, 2018. 2. Thereafter, on the last occasion i.e. on 21st June, 2019 we were informed that the order of the Delhi Commissioner in the case of M/s. Bharuch Dahej Railway Co. Ltd. was challenged before the Customs, Excise and Services Tax Ltd. Appellate Tribunal (Tribunal) by the Revenue. However, the Revenue's appeal came to be dismissed on 25th March, 2019 by the Tribunal. 3. As pointed out above, it is the case of the petitioners that it is identically placed in facts and law to that of M/s. Bharuch Dahej Railway Co. Ltd. which has been decided by the Commissioner of Service Tax, Delhi. Therefore, it is submitted that in view of the Revenue's appeal being dismissed on 25th March, 2019 and not further challenged by the Revenue, the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the fact that in the absence of the Apex Court granting stay to the decision of the Tribunal, the decision in Mudra Port Special Economic Zone Ltd. (supra) continued to be binding. 3. In the light of the above facts, particularly the Revenue not accepting the decision of the Tribunal in Bharuch Dahej Railway Co. Ltd. (supra) and Krishnapatnam Railway Co. (supra) of the Tribunal and being in the process of filing an appeal, we were of the view that the Petitioner should approach the appellate authority by filing a statutory appeal under the Act. We, therefore, informed the Petitioner that we were not inclined to entertain the petition. 4. At this, Mr. Nankani, learned Senior Counsel appearing in support of the petition, insists that the peculiar facts of this case requires a consideration by this Court and the Petitioner should not be relegated to the alternative remedy of statutory appeal under the Act. In support, he urged the following contentions: (a) The status of the Petitioner, namely, shareholding pattern of the Petitioner, is distributed entirely between the Central and four State Governments. This coupled with it acting und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court from entering a writ petition in its writ jurisdiction under Article 226 of the Constitution of India. However, the exercise of this writ jurisdiction is discretionary and it is not exercised only because it can be exercised. Therefore, the Courts have refused to exercise discretion under Article 226 of the Constitution of India, where an efficacious alternative remedy to obtain the same relief is available, as a self imposed limitation. Therefore, we now examine the submission on behalf of the Petitioner to decide whether this is a fit case to exercise our discretion, even though an efficacious alternative remedy of appeal under the Act from the impugned order dated 21 December 2016 to the Tribunal is available. 6. The first submission is that in view of the status of the Petitioner, the Writ Court should exercise its discretion and entertain this petition. The status of a party can never be the basis of exercising discretion to entertain a writ. In fact, the discretion is exercised on the basis of the action of the authority being without jurisdiction and not on the basis of the status of the party moving the Court. To decide on the basis of the status of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing which could be sought before the Tribunal, then there is no reason for us to exercise our discretion to entertain the writ. It is not the case of the Petitioner that the impugned order is without jurisdiction. In this case, we find that the order has already been passed. There is no reason, at this stage, to set aside the order of the Commissioner and restore the show cause notice to Commissioner so as to only compel the Revenue to follow the Master Circular and keep the show cause notice in abeyance and await the decision of the Supreme Court in the case of Mudra Port Special Economic Zone Ltd. (supra). 8. The reliance upon the decision of the Gujarat High Court in Darshan Boardlam (supra) is inappropriate in the present facts. In fact, in para 67 thereof, the Gujarat High Court noted as under: 67. We are of the view that on the facts of the present case, the preliminary contention or objection as raised by the Revenue deserves to be rejected as it cannot be said that exercise of writ jurisdiction in the present case is unwarranted. As rightly pointed out by the learned counsel appearing for the petitioner that the controversy in the instant case centre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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