Calcutta High Court (Appellete Side)
Sourav Ganguly vs The Commissioner Of Service Tax & Ors on 3 February, 2014
Author: Harish Tandon
Bench: Harish Tandon
1
10 03.02.14 W.P. 2721 (W) of 2014
akd
Sourav Ganguly.
Vs.
The Commissioner of Service Tax & Ors.
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Mr. J. K. Mittal, Mr. Paritosh Sinha, Mr. Amitava Mitra, Mr. Abhra Majumder, Ms. Dolon Das Gupta, Mr. Snehashis Sen, Mr. Shiladitya Barma.
... for the petitioner.
Mr. R. Bhardwaj, Mr. K. K. Maiti.
... for the respondents.
The original order dated 12th November, 2012 passed by the Commissioner, Service Tax, Kolkata confirming the demand of service tax for the period from May, 2006 to June, 2010 was assailed by the petitioner in W. P. 3137 (W) of 2013. The said writ petition was admitted on 12th February, 2013 when the prayer for interim relief was refused. However, the petitioner was permitted to deposit the dues within three months from the date of the said order and till such period the respondents were restrained from taking any coercive steps against the petitioner.
The matter was subsequently taken up on 3rd April, 2013 when a confusion was sought to be created by the petitioner relating to the words "dues" and "demand".
According to the petitioner whether the liability subsequent to the period, which is the subject matter of the said writ petition, may come under the purview of "dues" or it is restricted to the adjudicated amounts as assessed by the Assessing Authority.
2The Court did not find any justification for such modification and clearly held that the modification is not required at this stage. However, the Court thought it fit to proceed for hearing of the writ petition and directed the connected application to be taken up along with the writ petition.
The department issued recovery notice dated 10th January, 2014 contemplating to initiate a recovery proceedings, which is challenged in this writ petition. The main thrust to the impugned notice is that it is based or founded upon circular dated 1st January, 2013, which has been quashed and set aside by different High Courts. The petitioner further says that the authorities cannot proceed to recover the amount when the same is the subject matter before this Court in the earlier writ petition.
A reliance is heavily placed on a judgement rendered by a Division Bench of Rajasthan High Court in case of Manglam Cement Ltd. Vs. Superintendent of C. Ex. Range-III, Kota reported in 2013 (290) E.L.T. 353 (Raj.) to the proposition that the department should not take advantage of the pendency of an application seeking waiver of the pre- condition deposit of duty and on the other hand proceeds to initiate proceedings for recovery thereon.
The judgement rendered by the Court decides the point involved on the basis of the facts of the said case. Before the Division Bench of Rajasthan High Court, an appeal as well as an application for dispensation of the pre-condition deposit of duty was pending. The Tribunal was not sitting regularly and, therefore, the application could not be taken up. Taking advantage of such situation, the department intended to initiate a recovery proceedings. In the 3 backdrop of above, the Division Bench held that the department cannot take advantage on their own wrong.
This Court does not find that the ratio laid down in the said judgement rendered by the Division Bench of Rajasthan High Court can at all be applicable in the present case.
The writ petition challenging the original order has been filed by the petitioner before this Court with a prayer for an interim order. The Court consciously recorded that no case is made out for issuance of any interim protection at the stage of admission. The Court, however, permitted the petitioner to deposit the dues and passed an unconditional order restraining the department from taking any coercive measures for a limited period. Instead of depositing the dues, the petitioner sought for a modification/clarification of the said order on the plea as recorded hereinabove. The Court declined to pass any order for modification and directed the application to be listed and disposed of along with the writ petition. In the instant case the petitioner had an opportunity to deposit the dues as indicated by this Court and having failed to do so, there is no impediment and fetter put on the department to proceed with the recovery of the said amount.
The Rajasthan High Court in the above report categorically held that mere filing of an appeal does not operate as stay or suspension of an order appeal against. The interim order sought for was refused at the admission stage. Therefore, the petitioner cannot say that the authorities are denuded of its power to take steps for recovery of the amount. The petitioner has tried to demonstrate before this Court that 4 certain observations were made when the earlier writ petition was taken up, which inevitably suggest that the Court was conscious of the situation that the authorities shall not take any coercive measures pending the said writ petition. Though this Court finds that the department cannot take advantage of a circular, which is already quashed and set aside by the High Court, but for reasons narrated above, this Court does not intend to interfere with the said recovery notice, even if the circular appears to be non est. Although the petitioner relies upon the communicating letter issued by the advocate on record depicting the said fact, but my endeavour has failed to find any such finding in the orders passed from time to time in the said proceedings. Furthermore if certain event has taken place and the observation is made by the Court orally, the same Hon'ble Judge can only modify/clarify or indicate the happenings of such event and not by another Judge or the higher forum.
Since there is no interim order passed by the Court restraining the department from proceeding to recover the amount, the contemplation at the behest of the department for taking measures to recover the said amount cannot be faulted with.
This Court, therefore, does not find any merit in the writ petition and the same is hereby dismissed.
There will be no order as to costs.
(HARISH TANDON, J.) 5