TMI Blog2023 (12) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Max Super Speciality Hospital, Mohali regarding non-payment of service tax, it had come to their notice about the arrangement which has been made with the petitioner and thereafter the proceedings had been initiated and, therefore, the issue of jurisdiction is also based on a factual matrix. It would also be a matter of fact which would be within the jurisdiction of the Appellate Authority as to whether the notices as such issued were within the prescribed period and whether the action of the Revenue in extending the period of limitation is justified or not in the facts and circumstances. The writ petition is disposed of and the petitioners are relegated to the remedy of appeal. Needless to say that since the petitioners had approached this Court on 29.08.2023, if the appeal is filed within a period of 4 weeks from today. - HON'BLE MR. JUSTICE G.S. SANDHAWALIA AND HON'BLE MS. JUSTICE LAPITA BANERJI Present : For the Petitioner : Mr. Sandeep Goyal, Advocate, and Mr. Rishab Singla, Advocate. For the Respondents : Mr. Sourabh Goel, Sr. Standing Counsel, and Ms. Geetika Sharma, Advocate. G.S.SANDHAWALIA, J. (Oral) 1. Challenge herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice under Section 66(E)(a) and the liability for service tax at the hands of the Government was assessed rejecting the stand taken by the petitioner. 3. Mr. Sandeep Goyal, counsel appearing for the petitioner has vehemently argued that there was no question as such of concealment, fraud or misrepresentation and the demand raised is beyond limitation since the amount claimed is prior to 30.06.2017. The plea taken by the respondents in their reply that there is an alternate remedy provided under Section 86 of the Finance Act would not be tenable and this Court should go into the merits of the case. 4. As noticed, as per reply having been filed, apparently due opportunity was given and, therefore, there was no violation of principles of natural justice. The vires of the Statute or any Legislation is not a subject matter of challenge or any breach of fundamental rights. The only issue is of jurisdiction which the petitioners allege against the respondents. The Apex Court in M/s. Radhe Krishan Industries vs. State of Himachal Pradesh, 2021 AIR SC 2114 laid down the principles as under:- 27. The principles of law which emerge are that : (i) The power under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs, used in providing such service, such order shall be dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944 (1 of 1944): Provided further that all appeals filed before the Appellate Tribunal in respect of matters covered under the first proviso, after the coming into force of the Finance Act, 2012 (23 of 2012), and pending before it up to the date on which the Finance Bill, 2015 receives the assent of the President, shall be transferred and dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944 (1 of 1944). (1A) (i) The Board may, by order, constitute such Committees as may be necessary for the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Principal Chief Commissioners of Central Excise and Chief Commissioners of Central Excise or two Principal Commissioners of Central Excise or Commissioners of Central Excise] as the case may be. (2) The Committee of Principal Chief Commissioners of Central Excise or Chief Commissioners of Central Excise] may, if it objects to any order passed by the Principal Commissioner of Central Excise or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Officer subordinate to him or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Principal Commissioner of Central Excise or Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or sub-section (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Principal Commissioner of Central Excise or Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub- section (3) or subsection (4) if it is satisfied that there was sufficient cause for not presenting it within that period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be challenged by the petitioner under Article 226 of the Constitution of India and the order of the High Court had been set aside. In similar circumstances, in The State of Punjab vs. M/s. Shiv Enterprises and others, 2023 (96) GST 120, similar view has been taken wherein the Division Bench of this Court had interfered in a show cause notice issued and had passed detention order. The Apex Court set aside the order of the Division Bench by holding that once there is a statutory remedy provided under the Act, the High Courts are not supposed to interfere. We are also of the considered opinion that no such hardship will be caused to the State of Punjab if an appeal is to be filed under Section 86 of the Finance Act. 7. Keeping in view the above, we are of the considered opinion that it is a matter of how the agreement is to be construed as such and whether the State was contributing in any manner in the running of the hospital. This is a matter of fact which has to be analyzed by the statutory authorities in appeal and to be summerized. The right of the petitioner thereafter to challenge the order in case the same is decided against it would always be available. The issue of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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