Union Of India vs Coastal Container Transporters ...

The first respondent is Coastal Container Date: 2019.02.26 17:47:01 IST Reason: Transporters Association and the second and third 1 C.A.@ SLP(C)No.25699/18 respondents are, Yamuna Shipping Logistics Pvt. Ltd. and Pushpak Logistics Pvt. Ltd. who are engaged in the transport business. They have filed the aforesaid writ petition under Article 226 of the Constitution of India before the High Court. Though show cause notices dated 08.10.2015 and 30.09.2015 were issued to respondent nos.2 and 3, in anticipation of similar notices to its members, the first respondent-association also joined respondent nos.2 and 3 in the writ petition. In the aforesaid writ petition, the appellants herein have filed Civil Application No.2952 of 2017 raising preliminary objection with regard to maintainability of the writ petition itself. While allowing the Special Civil Application, the said civil application is also rejected by the High Court, by impugned order.

4. Necessary facts, in brief, are as under :

Based upon the intelligence gathered by the officers of Rajkot Regional Unit, which revealed that several business entities including respondent nos.2 and 3 who are engaged in doing the business of cargo handling in west coastal region but had got themselves registered under “good transport agency”, by taking approval from the competent authorities, searches were conducted in the premises of respondent nos.2 and 3. It is alleged that during such searches several incriminating documents, including the quotations submitted by the respondent- companies to their customers were seized and statements of the Directors were recorded as per the provisions of Central Excise Act, 1944 read with the provisions under Finance Act, 1994. Subsequently, the show cause notices dated 08.10.2015 and 30.09.2015, were issued to respondent nos.2 and 3, which are impugned in the writ petition filed before the High Court.

5. It is the case of the appellants that the respondents, with a view to evade payment of service tax, have split the whole transactions into three parts, i.e., from the place of consignor to Kandla/Mundra Port by road, from Kandla/Mundra Port in Gujarat to Kochi/Tuticorin Ports in South India by sea route and from Kochi/Tuticorin Ports in South India to the place of the consignee by road. It is the further case of the appellants that if the respondents are registered under the category of “cargo handling service”, no abatement would have been admissible and whole of the transaction from the consignor to consignee would be covered under the taxable services which attract higher rate of service tax.

20. For the aforesaid reasons, we allow this appeal and set aside the judgment and order dated 18.12.2017 passed by the High Court of Gujarat in Special Civil Application No.6679 of 2016.

21. We, however, grant four weeks’ time, to file responses/further responses to the show cause notices dated 08.10.2015 and 30.09.2015, to the respondent nos.2 and 3. On receipt of such responses from the respondents or after expiry of the aforesaid time, it is open for the appellants to consider the same on their own merits and pass appropriate orders, uninfluenced by any of the observations made by this Court in this judgment.

February 26, 2019.

5 2004 (166) ELT 153 (S.C.) 21