IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 9757 of 2011(I) ------------------------- PETITIONER(S): -------------------- BEENA PRADEEP,W/O.PRADEEP, BALU INTERPRISES,37/38,OLD VOLTAS BUILDING, VENKITARAMAN ROAD,WELLINGTON ISLAND, COCHIN-682003. BY ADV.S SRI.V.B.JINNAH SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT(S): ------------------------ 1. GOVERNMENT OF INDIA,MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),REPRESENTED BY THE COMMISSIONER OF CENTRAL EXCISE,CUSTOMS & SERVICE TAX,COCHIN COMMISSIONERATE,CR BUILDING,I.S.PRESS ROAD,COCHIN-682018. 2. JOINT COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX,IST FLOOR,CENTRAL REVENUE BUILDING,I.S.PRESS ROAD,COCHIN-682018. 3. SULPERINTENDENT OF CENTRAL EXCISE, SERVICE TAX 'C'RANGE,CENTRAL EXCISE BHAVAN, KATHRIKADAVU,KALOOR,COCHIN-682017. R2-3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 9757 of 2011(I) ----------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF SHOW CAUSE NOTICE ISSUED BY R1 DATED 4.8.2009. EXT.P2 COPY OF REPLY BY PETITIONER. EXT.P3. COPY REPLY TO R3 DATED 9.9.2010 EXT.P4. COPY OF HEARING NOTICE DT. 5.10.2010. EXT.P5. COPY OF OBJECTIONS DT. 26.10.2010. EXT.P6. COPY ORDER OF R2 DT. 31.1.2011 EXT.P7. COPY OF CORRECTION DT 17.2.2011. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.9757 OF 2011 ---------------------------------------------- Dated this the 20th day of October, 2011 JUDGMENT The petitioner challenges an order by the assessing authority demanding service tax in respect of certain activity of the petitioner. According to the petitioner, the petitioner's activity is not one coming within the purview of Section 65 of the Finance Act 1994 and therefore, the same is not exigible to service tax. The petitioner submits that notwithstanding the existence of the appellate remedy, she is entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, insofar as the order has been passed without jurisdiction. 2. I have heard the learned Standing Counsel for the Central Board of Excise and Customs also, who has filed a statement taking the specific contention that in view of the alternate remedy available to the petitioner under Section 85 of the Evidence Act, the writ petition is not maintainable. In the statement, he also relies on the Supreme Court decision in Union W.P.(C)No.9757/11 2 of India v. Zalcon Electronics [2010 (255) ELT 490 (SC)] laying down that when the facts required detailed adjudication and the same is made by the competent authority, the assessee should not have filed writ petition in the High Court straightway without exhausting the statutory remedy. 3. I am of opinion that the very fact as to whether the petitioner's activity comes within the purview of Section 65 of the Finance Act itself is a mixed question of fact and law and the facts involved has to be first decided by the lower authorities on the basis of the evidence available. As such, if the question has been wrongly decided by the assessing authority, the petitioner's remedy lies in filing an appeal against the assessment order. 4. The learned counsel for the petitioner submits that the period during which the writ petition was pending may be directed to be excluded for the purpose of calculating limitation in filing the appeal. Accordingly, without prejudice to the right of the petitioner to challenge the impugned order in an appeal as W.P.(C)No.9757/11 3 provided under the Statute, this writ petition is dismissed. It would be open to the petitioner to contend before the appellate authority that the period during which this writ petition was pending is liable to be excluded, in view of the principles regarding computation of limitation, which contention shall be considered by the appellate authority in accordance with law. S. SIRI JAGAN, JUDGE acd W.P.(C)No.9757/11 4 W.P.(C)No.9757/11 5