TMI Blog2022 (6) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of the Finance Act, 2007 - HELD THAT:- It is consciously refrained from observing anything on the merits of the contention regarding levy of service tax and exemption from payment of stamp duty claimed by the petitioner in exercise of writ jurisdiction, at this stage where the petitioner has only been asked to appear and submit its response to the show-cause notice. The show-cause notice does not suffer from want of jurisdiction. The plea of the petitioner requires scrutiny and examination of service contracts entered both with the Government of Jharkhand and its subcontractors in the light of the Exemption Notifications. Whether petitioner would be liable to pay service tax on its claim of exemption from payment of stamp duty, is a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 1994 read with Section 119 of Chapter VI of the Finance Act, 2015, Section 161 of Chapter VI of the Finance Act, 2016, Section 95 of the Finance Act (2), 2004 and Section 140 of the Finance Act, 2007 together with interest at the applicable rate under Section 75 of the Finance Act, 1994 and penalty in terms of Section 78 of the Finance Act, 1994. They have also been asked to show-cause as to why penalty be not imposed upon them in terms of Section 77 of the Finance Act, 1994 for having failed to get themselves registered with the Service Tax Department. 2. Show cause is based upon an inspection carried out on the petitioner in respect of the contract agreements entered into by the petitioner as service provider. During invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken note that the petitioner was not centrally registered with the Service Tax Department. It was also taken note that the above three MoUs / Agreements mentioned the various works to be executed by the petitioner through its sub-contractors, but the value of the work was not mentioned in those MoUs / Agreements. Petitioner prepared the estimate and submitted the same to the Government of Jharkhand which, in turn, gave approval of the same. Thereafter, the petitioner-company floated tenders for various works and appointed sub-contractors to execute the job. Details of the MoUs / Agreements have also been mentioned in the show-cause. As per the statement of the officials of the petitioner-Company, the construction work undertaken by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. Learned counsel for the petitioner submits that since leviability of the service tax is in question, the impugned show-cause notice is against the provisions of law and is fit to be quashed. 5. Respondent has filed counter affidavit. In respect of the claim of the petitioner for exemption from payment of stamp duty, it is submitted that as per the Notification dated 01.03.2016, two ingredients were required to be fulfilled. Notification dated 01.03.2016 revived the condition of exemption stipulated under Notification No. 25/2012, but exemptions could only be granted in favour of the petitioner if appropriate stamp duty had been duly paid on the agreements executed before 01.03.2015. Though, petitioner fulfilled the first condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to the show-cause notice. The show-cause notice does not suffer from want of jurisdiction. The plea of the petitioner requires scrutiny and examination of service contracts entered both with the Government of Jharkhand and its subcontractors in the light of the Exemption Notifications. Whether petitioner would be liable to pay service tax on its claim of exemption from payment of stamp duty, is a matter to be decided at the first instance by the Adjudicating Authority. The question does entail adjudication on mixed question of law and facts. We are, therefore, of the considered view that the writ petition is not fit to be entertained on the principles well settled by the Hon ble Supreme Court. The opinion of the Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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