1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/09/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.10643 of 2011 S.G.Mathiyalagan ... Petitioner Vs 1.The Joint Commissioner O/o.The Commissioner of Central Excise, & Service Tax, 1 Williams Road, Cantonment, Tiruchirappalli. 2.M/s.Bharat Sanchar Nigam Limited, (A Government of India Enterprises) Rep. By its General Manager, Thanjavur. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the case on the files of the first respondent in proceedings dated 27.06.2011 in C.No.V/ST/15/60/2010-Cx,Adj., quash the same and direct the respondent to pass the orders in the light of the circular No.123/5/2010-TRU dated 24.05.2010 issued by the Central Board of Excise & Customs. For petitioner ...Mr.T.Bashyam For respondents ...No appearance O R D E R The order in original No.8/2011–ST Dated 27.06.2011 passed by the Joint Commissioner, Commissionerate of Central Excise and Service Tax, Tiruchirappalli, is challenged on the ground that the authority has failed to take into consideration certain clarifications on the classification of service provided by the petitioner. 2. It is the further contention of the petitioner that “Site formation and Clearance, Excavation and Earth Moving and Demolition” does not fall within the definition of taxable service as per Sub Clause (zzza) of Section 65(105) of the Finance Act 1994. It is further contended that the impugned order, is an exparte order and that, the Joint Commissioner, https://hcservices.ecourts.gov.in/hcservices/ 2 Commissionerate of Central Excise and Service Tax, Trichy, has failed to consider the Customs Circular No.123/5/2010-TRU, dated 24.05.2010. At paragraph No.13, of the supporting affidavit, the petitioner has further contended that there is no statutory remedy available to the petitioner and therefore, he is constrained to seek the remedy under Article 226 of the Constitution of India. The above said contention is not correct, as there is a statutory remedy available to the petitioner under the Customs Act. Any person aggrieved by an order may file an appeal before the Commissionerate of Central Excise and Service Tax, Tiruchirappalli, within three months from the date on which the order in original, dated 27.06.2011, has been communicated to the person to whom it is addressed. It is further stated that the appeal including the statement of facts and the grounds of appeal shall be filed in duplicate with the order of original and pending disposal of the appeal, the appellant shall deposit the duty demanded or the penalty levied therein and produce proof of such payment along with the appeal, failing which, the appeal would be rejected for non compliance of the provisions under Section 129 of the Customs Act, 1962/35F Central Excise Act, 1944. 3. The petitioner has been made aware of the statutory right of filing of the appeal before the Commissioner of Customs and Central Excise (Appeals), Trichy and the further details in the preamble portion of the impugned order itslef (order and original) that there is a statutory remedy available. Whereas, the petitioner at paragraph No.13 of the supporting affidavit of the writ petition has contended that there is no statutory appeal remedy and that therefore, he is constrained to prefer this writ petition. Prabably, in order to avoid the deposit of duty, the petitioner has made such submissions. 4. Though the learned counsel for the petitioner has contended that it is an exparte order, without adverting to the points raised, perusal of the impugned order shows that the show cause notices dated 13.08.2009 and 28.09.2010 respectively were acknowledged by the petitioner and that as no reply received in response to the show cause notice within 30 days from the receipt of the notice, the petitioner has been directed the same. Though personal hearing was fixed on 04.04.2011, none appeared and therefore, it stood adjourned to 02.05.2011. Again no one appeared and therefore, personal hearing has been posted to 20.05.2011. Though, several opportunities were given to the petitioner to submit the reply and also to appear in person, there was no response and therefore, the Joint Commissioner, Commissionerate, Trichy, the first respondent herein, has passed a detailed speaking order with reference to the statutory provisions and that he has also considered the orders passed by various Tribunal. 5. Reading of the impugned order reflects application of mind on the part of the first respondent with reference to the issue and reasons have also been assigned. The order in original cannot be said to be a non speaking order. It is needless to state that both the Apex Court as well as this Court have consistently held in revenue matters, the Court should not https://hcservices.ecourts.gov.in/hcservices/ 3 be slow and entertain the writ petition, unless, it is passed without jurisdiction and available, when an alternative remedy is available. Further, there is a statutory remedy available to the petitioner. In such circumstances, this Court is not inclined to accept the contention of the petitioner that there is no statutory remedy available under the statute and hence the petitioner has been constrained to prefer this writ petition. 6. Following the abovesaid reasons, this Court is not inclined to entertain the writ petition. Accordingly, the writ petition is dismissed. The petitioner is permitted to take back the original order in original dated 27.06.2011, after submitting an attested copy of the same to the Registry, if so advised. No costs. Consequently connected miscellaneous petition is also closed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub-Assistant Registrar To 1.The Joint Commissioner O/o.The Commissioner of Central Excise, & Service Tax, 1 Williams Road, Cantonment, Tiruchirappalli. 2.M/s.Bharat Sanchar Nigam Limited, (A Government of India Enterprises) Rep. By its General Manager, Thanjavur +One CC to Mr.R.Aravindan, Advocate, SR.No.31960 +One cc to Mr.T.Bashyam, Advocate, SR.No.32056 RR rl/5c- 10.10.2011 Writ Petition No.10643 of 2011 and M.P.No.1 of 2011 19.09.2011 https://hcservices.ecourts.gov.in/hcservices/