1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.03.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD)Nos.159 and 160 of 2011 and M.P.(MD)Nos.1 and 1 of 2011 Thiagarajar Mills Limited Represented by its Director (Marketing and Finance) A.Mariappan : Appellant in W.A.(MD)No.159/2011 VTM Limited represented by its Constituted Attorney A.Mariappan : Appellant in W.A.(MD)No.160/2011 Vs. 1.Union of India, represented by its Secretary to Government, Ministry of Finance, North Block, New Delhi. 2.The Central Board of Excise and Customs represented by its Chairman, Ministry of Finance, Department of Revenue, North Block, New Delhi. 3.The Joint Commissioner of Central Excise, Office of the Commissioner of Central Excise, Central Revenue Buildings, Bibikulam, Madurai-625 002. : Respondents in both W.As. COMMON PRAYER: Writ Appeals are filed under Clause 15 of the Letters Patent against the common order dated 25.10.2010 passed in W.P(MD). Nos.2250 and 351 of 2009 on the file of this Court. PRAYER IN W.P(MD) No.2250 of 2009: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Declaration that he Section 66-A of the Finance Act, 1994 read with the impugned show cause notice No.8/08-ST dated 12.2.09 issued by the third respondent is unconstitutional and consequently forbear the respondents from demanding service tax from the petitioner for the service provided by foreign commission agents abroad. https://hcservices.ecourts.gov.in/hcservices/ 2 PRAYER IN W.P(MD) No.351 of 2009: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Declaration that he Section 66-A of the Finance Act, 1994 read with the impugned show cause notice No.10/08-ST dated 1.8.08 issued by the third respondent is unconstitutional and consequently forbear the respondents from demanding service tax from the petitioner for the service provided by foreign commission agents abroad. For Appellants : Mr.G.R.Swaminathan For Respondent No.1 : Mr.A.John Xavier For Respondent Nos.2 & 3 : Mr.B.Vijay Karthikeyan COMMON JUDGMENT [Judgment of the Court was delivered by A.ARUMUGHASWAMY, J] These Writ Appeals are filed as against the common order dated 25.10.2010, passed in W.P(MD).Nos.2250 and 351 of 2009. 2. The above said Writ Petitions were filed challenging vires of Section 66-A of the Finance Act, 1994 as well as the show cause notice issued, pursuant to the said provision. The learned Single Judge, relying on a judgment of a Division Bench of Bombay High Court in Indian National Shipowners Association vs. Union of India reported in 2009(13) STR 235 (Bom.), dismissed both the Writ Petitions. Aggrieved over the said order, the present Writ Appeals are filed. 3. We have heard the learned counsel appearing for the appellants and the respective learned counsel appearing for the respondents. 4. The writ petitioners are the appellants herein. The appellants have filed the Writ Petitions challenging Section 66-A of the Finance Act, 1994 as well as the show cause notice issued, pursuant to the said provision. The learned Single Judge, relying on the judgment of the Division Bench of Bombay High Court in Indian National Shipowners Association vs. Union of India reported in 2009(13) STR 235 (Bom.), dismissed the Writ Petitions, stating that already this aspect has been considered by the Division Bench of Bombay High Court, against which, the present Writ Appeals have been filed. 5. The only contention of the learned counsel appearing for the appellants is that in the judgment in Indian National Shipowners Association's case cited supra, which was relied on by the learned Single Judge, Section 66-A of the Finance Act, 1994 has not been considered and that aspect was given up by the learned counsel in the said judgment at the time of hearing. Therefore, he requested this Court that the matter may be remitted back to the learned Single Judge for fresh consideration, for which, the respective learned counsel appearing for the respondents contended that in similar cases, this aspect has been considered. Hence, the learned Single Judge has rightly considered the matter and as such, the order of the learned Single Judge has to be confirmed. https://hcservices.ecourts.gov.in/hcservices/ 3 6. From the perusal of the records, it is seen that the appellants have filed the Writ Petitions challenging Section 66-A of the Finance Act, 1994. The learned Single Judge has dismissed the Writ Petitions, relying on the reported judgment of the Bombay High Court in Indian National Shipowners Association vs. Union of India reported in 2009(13) STR 235 (Bom.), hoping that Section 66-A of the Finance Act, 1994 has been considered in that judgment. However, on perusal, it is seen that in Indian National Shipowners Association's case cited supra, which was relied on by the learned Single Judge, the learned counsel, at the time of hearing, has given up the validity of Section 66-A of the Finance Act, 1994 and as such, the Division Bench of Bombay High Court had no occasion to consider the validity of the impugned statutory provision. Therefore, we are of the view that the matter requires fresh consideration by the learned Single Judge and the impugned order dated 25.10.2010 is liable to be set aside. 7. Accordingly, the impugned order dated 25.10.2010 is set aside and the matter is remitted back to the Writ Court for fresh consideration and the Writ Appeals are allowed. Consequently, the connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, Ministry of Finance, North Block, New Delhi. 2.The Chairman, Central Board of Excise and Customs Ministry of Finance, Department of Revenue, North Block, New Delhi. 3.The Joint Commissioner of Central Excise, Office of the Commissioner of Central Excise, Central Revenue Buildings, Bibikulam, Madurai-625 002. Copy to: The Section Officer, Writ Section, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.G.R.Swaminathan, Advocate (SR.No.5641) +1 CC to Mr.B.Vijay Karthikeyan, Advocate (SR.No.5495) Common Judgment made in W.A.(MD)Nos.159 and 160 of 2011 Dated:- 08.03.2011 SML NSV/1.4.2011/3P/7C https://hcservices.ecourts.gov.in/hcservices/