B CHOWDHURY HOLDINGS PVT LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT v. THE UNION OF INDIA & Anr.

Advocate for the Petitioner : MR. B CHAKRABORTY Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Date : 04-04-2022 ORDER Heard Mr. B Chakraborty, learned counsel for the petitioner, Ms. A Gayan, learned CGC for the Union of India appearing for respondent no. 1 and Mr. S C Keyal, learned Standing Counsel for the GST Department appearing for respondent no. 2.

The adjudicatory order dated 09.02.2022 passed by the Principal Commissioner, GST and Central Excise Commissionerate, Guwahati is an order-in-original No.16- Pr.Commr/ST/GHY/2021-22, which has been assailed in this writ petition filed under Article 226 of the Constitution of India.

The case projected by the learned counsel for the petitioner is that in respect of various sources of receipt of the petitioner, the money received against FCI transportation business, material handling income and sale of research vouchers are exempted by notification no. 25/2012 dated 20.06.2012, and notification no. 04/2014 dated 17.02.2014 respectively. The learned counsel for the petitioner also submits that despite the submission by the petitioner regarding receipts under the said heads was recorded in the adjudicatory order dated

09.02.2022, but in absence of any document, the Principal Commissioner while rejecting the claim of the petitioner against the non-taxability of the said items, confirmed the demand of service tax with cesses amounting to Rs.8,24,48,561/- (Rupees eight crore twenty four lakh forty eight thousand five hundred sixty one only) for the period from 01.04.2015 to

31.03.2016 and ordered recovery of the same.

The tenability or otherwise of grounds on which the said adjudicatory order and demand dated 09.02.2022 has been challenged have not been gone into. Nonetheless, it may be mentioned herein that the learned Standing Counsel for the GST has vehemently objected to the prayers made in this writ petition on the ground that the order is otherwise appealable under Section 86 of the Finance Act, 1994, and that an opportunity of hearing was also given to the petitioner. Page No.# 3/4

The Court has considered the submission made by the learned counsel for the petitioner that amongst various receipts, by the petitioner, three components as already mentioned hereinbefore are exempted from the incidence of service tax and prayer made by the learned counsel for the petitioner is that the petitioner may be given an opportunity of placing the relevant documents before the authorities, the Court is of the considered opinion that as the provisions of Section 74 of the Finance Act, 1994 provides for rectification of mistake, the ends of justice would be met to permit the petitioner to avail the statutory remedy as provided for under Section 74 of the Finance Act, 1994 by applying for rectification of mistakes, if any.

As already indicated hereinbefore, the Court records the objection made by the learned Standing Counsel for GST.

Be that as it may, as the Finance Act, 1994 provides under Section 74 for rectification of mistakes. Therefore, without adjudicating the issue raised in the writ petition, the Court is inclined to relegate the petitioner to submit a representation before the respondent no. 2 in an appropriate manner under Section 74 of the Finance Act, 1994 and on receipt of such representation, the respondent no. 2 i.e. Principal Commissioner, GST and Central Excise Commissionerate shall dispose of the said representation in accordance with law.

The petitioner shall produce a copy of the order along with his representation and also provide his email address to the respondent no. 2 within a period of two weeks from today, considering the upcoming Bihu holidays and on receipt of the same, the respondent no. 2 shall dispose of the same within a period of six weeks thereafter and communicate his order to the writ petitioner.

With the aforesaid observation, this writ petition stands closed. Page No.# 4/4 JUDGE Comparing Assistant