Judgment · High Court

adjudicating authority dated 9.9.2009 confirming the demand of service tax amounting to Rs.7,67,143/- in CWP-13771/09, dated 1.9.2009 confirming the demand of service tax amounting to Rs.6,92,893/- in CWP- 13772/09 and dated 9.9.2009 confirming the demand of service tax amounting to Rs.8.07,119/- in CWP- 13947/09 and orders of recovery has been passed under the provisions of Section 73(1) of the Finance Act, 1994. Interest has also been ordered to be recovered along with penalty. The petitioners have submitted that earlier show cause notices were issued. There was dispute as to in what capacity petitioners have to be treated. Action has been taken illegally and beyond the period of limitation. No service tax could have been realized from the petitioners. The orders are palpably illegal

and as such, interference should be made under writ jurisdiction bypassing the statutory remedy of appeal under the Central Excise Act, 1944. The job done by the petitioners does not fall under the business auxiliary services and in the category of promotion or marketing. As such, the impugned orders are not sustainable at all. In the reply filed by the respondents, it is submitted that the petitioners are registered firms working as finance broker and partnership firms. The writ petitions are frivolous and deserve to be dismissed. There is remedy of statutory appeal which is available to the petitioners. Services provided by the petitioners is taxable as provided under Section 65(19) of the Finance Act, 1994. Service tax is leviable on the service provided in connection with promotion or marketing of services. Petitioners have clearly admitted in the reply pursuant to show cause notice issued to them that the activities carried on by them is covered under the category of Business Auxiliary Services w.e.f.

1.7.2003. Other facts and grounds have also been denied. Preliminary objection has been raised by Shri Anil Mehta, learned counsel appearing on behalf of the respondents that statutory appeal lies before the appellate authority under Section 35 of the Central Excise Act, 1944. Consequently, no interference may be made in the writ petitions. Various disputed questions are involved which can be raised effectively before the appellate authority. No case for interference under writ jurisdiction is made out.

She P.K. Kasliwal, learned counsel appearing on behalf of the petitioners has submitted that remedy of appeal cannot be said to be appropriate in the facts of the present case as the impugned orders are palpably wrong. Show cause notices were issued treating the status of the petitioners differently. Thus, the respondents were not sure in what capacity the petitioners were required to be assessed. There is abuse of process of law. The notices could not have been issued beyond the period of limitation. Recovery was time barred for certain period and it is a fit case where this court should exercise the writ jurisdiction. After hearing learned counsel appearing on behalf of the parties, we are of the considered opinion that when statutory remedy of appeal is available, all the questions pertaining to the factual matrix and mixed questions of facts and law have to be raised before the concerned authority. Appeal is statutory, efficacious, alternative remedy available to the petitioners. We do not find that in such cases we should readily exercise writ jurisdiction. In view of availability of efficacious alternative remedy of appeal, we decline to interfere in the writ petitions in the orders passed by the adjudicating authority. Various facts have been disputed. Determination of such facts can be made by the concerned authority in appeal. In view of aforesaid discussion, we are not inclined to exercise writ jurisdiction in the present matter as efficacious, alternative remedy of filing statutory appeal is available to the petitioners. However, as the period of limitation to file appeal has