IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 10551 of 2010(T) ---------------------------------------- PETITIONER(S): ----------------------- SPEED AND SAFE COURIER SERVICES PVT.LTD, 65/579, ST.BENEDICT ROAD, 1ST CROSS, NEAR ERNAKULAM NORTH RAILWAY STATION, COCHIN-682 018, REPRESENTED BY ITS MANAGING DIRECTOR, P.UNNIKRISHNAN NAIR. BY ADV. MR.R.SUDHEESHKUMAR, MR.A.G. SUNIL KUMAR. RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI. 2. THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, COCHIN COMMISSIONERATE, KOCHI. 3. THE JOINT COMMISSIONER, DEPARTMENT OF CENTRAL EXCISE AND CUSTOMS, KOCHI. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA. R2 & R3 BY ADV. MR.JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No.10551 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of March, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner is challenging Ext.P4 'show cause notice' issued in connection with the liability to pay 'Service Tax'. The case of the petitioner is that Ext.P4 notice is beyond the competence and jurisdiction of the issuing authority as the transaction in question is in respect of the business conducted outside the state of Kerala. 2. Heard the learned counsel for the petitioner at length and also the learned Standing Counsel appearing for the respondents. It is very much obvious from Ext.P4, that the concerned respondent was constrained to issue the same in view of the incriminating circumstances specifically taken note of therein, observing that there was violation of the statutory prescriptions; particularly under Sections 67,68 and 70 of the Kerala Finance Act 1994, read with the relevant Rules and accordingly, penalty under Section 76, 77 W.P.(C).No.10551 of 2010 2 and 78 was proposed to be ordered besides the liability to pay interest on the belated payment of 'Service Tax' under Section 75. The petitioner has been asked to show cause, why: “i) an amount of Rs.36,45,914/- (Rupees Thirty six lakhs forty five thousand nine hundred and fourteen only) being the Service Tax, Education Cess and secondary and Higher Education Cess not paid by them during the period from 01.04.2008 to 30.06.2009 under the category 'Courier Agency Service' should not be demanded and recovered from them under proviso to Section 73(1) of the Finance Act, 1994, read with Rule 6 of the Service Tax Rules, 1994; ii) interest on the delayed payment of Service Tax at the appropriate rate should not be demanded and recovered fro them under Section 75 of the Finance Act, 1994; iii) Penalty under Section 76 of the Finance Act, 1994 should not be imposed on them for contravention of Section 68 of the Finance Act, 1994; iv) penalty should not be imposed on them under Section 77 of the Finance Act, 1994 for contravention of Sections 67 and 70 of the Finance Act, 1994 and the Rules made there under and v) penalty should not be imposed on them under Section 78 of the Finance Act,1994 for suppressing the value of taxable service with intent to evade payment of Service Tax, Education Cess and Secondary & Higher Education Cess for the period, mentioned supra.” W.P.(C).No.10551 of 2010 3 3. Obviously the petitioner has been given 30 days time to submit the explanation. The learned counsel for the petitioner submits that, the proceeding is per-se wrong and illegal, as the 3rd respondent does not have any jurisdiction in respect of the transactions carried out by the petitioner outside Kerala and the petitioner is not liable to produce any such material before the said authority. In response to this, the learned Standing Counsel contends that, the petitioner is making use of the infrastructure available in Kerala and doing the business from this State, so as to deliver the materials to the addressees outside the State. The contention of the petitioner that, the petitioner is already having Service Tax registration for the relevant works of the branches outside the State of Kerala, is stated as not substantiated by providing any evidence as to payment of Service Tax by their branches outside the State of Kerala. 4. The learned counsel for the petitioner submits that, W.P.(C).No.10551 of 2010 4 by virtue of the inherent defect, the course now proposed to be made by the respondents is not liable to be proceeded further, as the petitioner is not bound to face any such ordeal. 5. Ext.P4 is only a notice. The petitioner is very much at liberty to submit the objection/ explanation, both on the question of facts as well as on law, in response to Ext.P4 notice. Whether the petitioner should be relegated to the statutory authority, if the order to be passed by the authority pursuant to Ext.P4 notice, by availing alternative remedy or if interference should be made by this Court, exercising the discretionary jurisdiction under Article 226, will arise only on passing appropriate orders, by the concerned authority who issued Ext.P4, after considering the version to be presented from the part of the petitioner. 6. Obviously since Ext.P4 is only a 'show cause notice' giving an opportunity of being heard to the petitioner, absolutely no interference is warranted under any W.P.(C).No.10551 of 2010 5 circumstance. This Court does not find any tenable ground to sustain the Writ Petition, which is dismissed accordingly; however without prejudice to the rights and liberties of the petitioner to submit the statement of objections in reply to Ext.P4 and to pursue the matter in accordance with law. Taking note of the fact that the time stipulated by the 3rd respondent is already over, the petitioner is granted a further period of 3 weeks for filing the explanation to Ext.P4. P.R. RAMACHANDRA MENON JUDGE nl