Kerala High Court
C.D Sunny vs Assistant Commissionner on 17 January, 2022
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
WP(C) NO. 12552 OF 2021
PETITIONERS:
1 C.D SUNNY
CHAIRMAN, M/S.OLARI LITTLE FLOWER KURIES PVT.LTD., LITTLE
FLOWER CHURCH, SHOPPING COMPLEX,
OLARIKKARA, THRISSUR-680 012
*2 A.D.WILSON,
S/O DEVASSY, DEPUTY CHAIRMAN,
M/S.OLARI LITTLE FLOWER KURIES LIMITED,
LISIEUX APPARTMENT, OLARIKKARA.P.O.,
PULLAZHI, THRISSUR DISTRICT
RESIDING AT ANTHIKADAN HOUSE,
ELTHURUTHU, ARANATTUKARA VILLAGE,
THRISSUR TALUK,
THRISSUR DISTRICT - 680 611.
*[ADDL.P2 IS IMPLEADED AS PER ORDER DATED 11/01/2022 IN
I.A. NO.1/21 IN W.P(C) 12552/2021]
BY ADVS.
SRI.G.HARIHARAN
SRI.PRAVEEN.H.
RESPONDENTS:
1 ASSISTANT COMMISSIONNER
CENTRAL TAX AND CENTRAL EXCISE,
THRISSUR DIVISION, CR BUILDING,
S.T. NAGAR, THRISSUR-680 001
2 COMMISSIONER OF CENTRAL TAX AND EXCISE (APPEALS),
I.S PRESS ROAD, ERNAKULAM-682 018
BY ADV THANUJA ROSHAN
ADV.SREELAL WARRIER, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2022, ALONG WITH WP(C).12576/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos.12552& 12576/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
WP(C) NO. 12576 OF 2021
PETITIONERS:
1 C.D.SUNNY,
CHAIRMAN,
M/S. OLARI LITTLE FLOWER KURIES PVT. LTD.,
LITTLE FLOWER CHURCH, SHOPPING COMPLEX,
OLARIKKARA, THRISSUR-680 012.
*2 A.D.WILSON,
S/O DEVASSY,
DEPUTY CHAIRMAN,
M/S.OLARI LITTLE FLOWER KURIES LIMITED,
LISIEUX APARTMENT, OLARIKKARA.P.O.,
PULLAZHI, THRISSUR DISTRICT
RESIDING AT ANTHIKADAN HOUSE,
ELTHURUTHU, ARANATTUKARA VILLAGE,
THRISSUR TALUK,
THRISSUR DISTRICT - 680 611.
*[ADDITIONAL 2ND PETITIONER IS IMPLEADED AS PER ORDER
DATED 04/01/2022 IN I.A. NO.1/2021 IN WP(C)
12576/2021.]
BY ADVS.
SRI.G.HARIHARAN
SRI.PRAVEEN.H.
RESPONDENTS:
1 ASSISTANT COMMISSIONER,
CENTRAL TAX AND CENTRAL EXCISE,
THRISSUR DIVISION, CR BUILDING,
S.T. NAGAR, THRISSUR-680 001.
2 COMMISSIONER OF CENTRAL TAX AND EXCISE (APPEALS),
I.S. PRESS ROAD, ERNAKULAM-682018.
BY ADV THANUJA ROSHAN
BY ADV.SREELAL WARRIER, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2022, ALONG WITH WP(C).12552/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) Nos.12552& 12576/2021
3
BECHU KURIAN THOMAS, J.
-------------------------------------------------
W.P.(C) No.12552 & 12576 of 2021
------------------------------------------------
Dated this the 17th day of January, 2021
JUDGMENT
These two writ petitions are filed by the same person seeking similar reliefs and are hence considered and disposed of together.
2. The reliefs claimed for in these writ petitions include a direction to accept the demand drafts produced by the petitioner towards filing fees for the appeals filed under section 85(1) of the Finance Act, 1994 (for short, 'the Act') in lieu of online payment. A further direction is also sought to consider the stay petition filed along with the appeal as well as the appeal itself, on merits.
3. Petitioner is engaged in a chitty business. As a means of generating additional income, petitioner owns three contract carriages. Treating the above contract carriages as rent-a-cab- services, the respondents assessed them as part of taxable services under section 67(2) of the Service Tax Act. Though petitioner denied the claim of the respondents, huge amounts were imposed on the petitioner for the assessment year 2016-2017 and 2018-2019. Orders in original were issued against the petitioner numbered as 36/2019-20 and 37/2019-20 both dated 19.02.2020 produced as Ext.P2 in both writ petitions WP(C) Nos.12552& 12576/2021 4 respectively.
4. Challenging the imposition of service tax on the petitioner, statutory appeals were filed under section 85(1) of the Act, as per Ext.P3 in both the writ petitions. The order ST 36/2019-20 is challenged in the appeal referred to in W.P.(C) No.12552 of 2021 while the order ST 37/2019-2020 is challenged in the appeal involved in W.P. (C) No.12576 of 2021. The fee for preferring the appeal was Rs.16,410/- in W.P.(C) No.12552 of 2021 and Rs.72,609/- in W.P.(C) No.12576 of 2021.
5. As per the procedure now prevailing, the fee for appeal ought to have been paid through the online method. Petitioner alleges that he could not pay the same through online method due to technical snags. In order to avoid period of limitation, petitioner took two demand drafts on 23.12.2020 bearing No.928864 and 928865, both drawn through the State Bank of India, High Court Branch. However, the second respondent refused to accept the demand drafts submitted by the petitioner and due to non-acceptance, the appeals have not been considered and the same are kept aside. It is in the above circumstances that petitioner has approached this Court seeking a direction to accept the demand drafts submitted by the petitioner in lieu of the online payment.
WP(C) Nos.12552& 12576/2021 5
6. I have heard Sri.G.Hariharan, the learned counsel for the petitioner as well as Sri.Sreelal Warrier, the learned Standing Counsel for the respondents.
7. Learned counsel for the respondents submitted that even if it is assumed that there was a technical snag in accepting the online payment, which is totally denied, still, nothing prevents the petitioner from making the payment at least now, through the online method itself. Learned Standing Counsel also submitted that the system of accepting demand drafts have been completely stopped and only the online payment is being accepted. He further asserted that petitioner was the only person who found it unable to pay the filing fee online, when no one else had such an issue. It was also submitted that there are no glitches now to even assume that petitioner cannot make online payment.
8. In view of the aforesaid submissions, the learned counsel for the petitioner submitted that if the glitches in the online payment have been rectified, there is no difficulty for the petitioner to make the online payment.
9. It is evident that petitioner had taken demand drafts as early as on 23.12.2020, as is evident from Ext.P5 produced in both writ petitions. The said date is within the period of limitation itself. WP(C) Nos.12552& 12576/2021 6 Therefore the bona fides of the petitioner cannot be doubted. In such a view of the matter, since the petitioner has now expressed his willingness to pay the filing fee under the online method, an opportunity to make such payment ought to be made available to the petitioner. In view of the above, the petitioner is permitted to pay the filing fee for the appeal against the order No.36/2019-2020 and 37/2019-20-ST both dated 19.02.2020 through the online method within a period of 30 days from the date of receipt of a copy of the judgment. If such payment is made, the appellate authority shall accept the same into its files and consider the appeals on merits.
10. If the demand draft taken by the petitioner has expired, it is a matter which the petitioner will have to take up with the bank concerned.
The writ petitions are disposed of as above.
Sd/-
BECHU KURIAN THOMAS JUDGE vps WP(C) Nos.12552& 12576/2021 7 APPENDIX OF WP(C) 12552/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.97/2016-17 DATED 03.01.2017 ISSUED BY THE RESPONDENT ADDRESSED TO THE PETITIONER Exhibit P2 TRUE COPY OF THE COMMON ORDER MADE AS ORDER NO.36 AND 37/2019-20 ST DATED 19.02.2020 AND ISSUED ON 11.03.2020 BY THE RESPONDENT AGAINST THE PETITIONER Exhibit P3 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED U/S 85(1) OF THE FINANCE ACT 1994 BEFORE THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE PETITION FOR STAY ALONG WITH EXHIBIT P3 MEMORANDUM OF APPEAL DATED 21.12.2020 Exhibit P5 TRUE COPY OF THE DEMAND DRAFT FOR RS.16,410/- TAKEN IN FAVOUR OF COMMISSIONER APPEALS CENTRAL EXCISE, CENTRAL REVENUE BUILDING, IS PRESS ROAD ON 23.12.2020.
Exhibit P6 TRUE COPY OF THE DEATH CERTIFICATE ISSUED
BY THE REGISTRAR OF BIRTHS AND
DEATHS,THRISSUR ON 18.08.2021 EVIDENCING DEATH OF SRI.C.D.SUNNY ALIAS CHACKO.
Exhibit P7 TRUE COPY OF THE EXTRACT OF THE RESOLUTION PASSED AT THE BOARD OF MEETING OF THE DIRECTORS OF M/S.OLARI LITTLE FLOWER KURIES LTD.
WP(C) Nos.12552& 12576/2021 8 APPENDIX OF WP(C) 12576/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
97/2016-17 DATED 03/01/2017 ISSUED BY THE RESPONDENT ADDRESSED TO THE PETITIONER.
Exhibit P2 TRUE COPY OF THE COMMON ORDER MADE AS ORDER NO. 36 AND 37/2019-20-ST DATED 19/02/2020 AND ISSUED ON 11/03/2020 BY THE RESPONDENT AGAINST THE PETITIONER. Exhibit P3 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED U/S. 85(1) OF THE FINANCE ACT, 1994 BEFORE THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE PETITION FOR STAY ALONG WITH EXT.P3 MEMORANDUM OF APPEAL DATED 21/12/2020.
Exhibit P5 TRUE COPY OF THE DEMAND DRAFT FOR
RS.72,609/- TAKEN IN FAVOUR OF
COMMISSIONER APPEALS CENTRAL EXCISE, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD ON 23/12/2020.
Exhibit P6 TRUE COPY OF THE DEATH CERTIFICATE
ISSUED BY THE REGISTRAR OF BIRTHS AND
DEATHS, THRISSUR ON 18-08-2021
EVIDENCING DEATH OF SRI. C.D.SUNNY
ALIAS CHACKO.
Exhibit P7 TRUE COPY OF THE EXTRACT OF THE
RESOLUTION PASSED AT THE BOARD OF
MEETING OF THE DIRECTORS OF M/S. OLARI
LITTLE FLOWER KURIES LTD.