1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 2031 clay of November, 2008 BEFORE: THE Honrnm MR JUSTICE D V SHYLEHBLTUTKA . Writ Petition No. 144?6 _of.20_(?8 BETWEEN M/S. SJR INFRASTRUCTURE 190.}, SJR PRIMUS, rm 8; am FLOOR, INDUSTRIAL :..p.Y"ci5'f1: 7m BLOCK, KORAMANGALA; --_ . " ' BANGALORE - 560 095. " = REP. BY DIRECTOR MR. J. BQQTpEs,H"R'2pp~r;a A. AGED AEBOU'FA3§.YEAfRS._V._" T myrmowga 1 " ' A.H., Adv.] AND: 1.
.~§fr§~1E: ub:1.F1N1::IA
” REP. BY ITS SECRETARY,
» , M;NIs*rRs:oF FINANCE,
T “‘E.’)EP?AF?’I’h§ENT OF REVENUE,
GOVERNMENT OF’ INDIA,
. “Tx~JR’m_13.:.ocz<,
NEW DELHI – 110 001.
T}’€E”GEN’FRAL BOARD OF’
A ‘ 4_ EXCISE AND CUSTOMS,
“REP. E3? ITS CHAIRMAN,
” HAVING ET8 OFFICE AT
NORTH BLOCK,
NEW DELHI – 110001.
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3. THE COMMISSIONER op SERVICE TAX,
sssmcs TAX COMMISSICENERATE,
NO. Is/1 ; SP. COMPLEX,
LALBAGH ROAD, u __
BANGALORE — sec 027. .§{ESPONDEN'”?S
TI-{IS PETITION IS malt; uN13I:R;AI2%rIoLss 52i;l3’z31%.ND 227 ow ”
THE CONSTITUTION ow INDIA, PRAYING TO ‘QUASH *TH’£~3«;T>E1C’I;AR’I~i3
THAT THE CIRCULAR NO. gs/I/goes» =I..I;2oos-ss.___vI:sE
ANNEXURE — A, IN so FAR AS IT DENIES CREDIT 05 wax. PI’I_._ID,ON_
INPUT oooos AND SERVICES USED ” §’oI=2=”ssfI*r1Nc;I UP”.
XMMOVAESLE PROPERTY FOR ms”-VI>}2ovIbINe.VVos }>?.E3N’f’IhIG or
IMMOVABLE PROPERTY sssvzcs ‘Is ULTRA V-!.RES”‘I’}-I’I’$ FINANCE
ACT, 1994 AND THE CENVAT CREDIT”IRU{,ES, 2os4_IN_I3o FAR AS
PETITIONER IS CONCERI’€E1″?_AND I ‘
THIS PE’I’ITiON COMIIEEA{IN’EF’OR_.I:15i3AEVI,fM_INARY HEARING,
THIS DAY,’1’HE COURT MAoEf_IfHE’ Eo.I.LowINs;*-‘
Writ ~ who is a service
provides; I terms of the provisions of
Section esreaa s«ittI.%AcI§ssse%. :05 of the Finance Act, 1994
[for §}ji()I’E,. tho Ac_1V_;]’. I
VA pctifioner claims to be aggrieved by the
s1ioI§I”%oausé’I: dated 16– 104008 [copy at Am1ex11re–B
– ‘to the Iév.1ffi petition] that has been issued by the assessing
and also the circular dated 4-1-2008 [copy at
£I1_iJ1exure~A to the writ petifion] issued by the central
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board of excise and customs, which aceordiz1gVT–‘te the
learned counsel for the petitioner is the basis
cause notice and is sought to be relied
denial of the credit availed by
paid on the input of service provitleé L’
given credit in Iespect of all of Rule’
3 of the CENVAT Cxecaig~~1cg;,11<'§sl;i2ljl§57l.'v,'[for sheet, Rules],
so long as the been paid on
any input of the factory of the
m.a,nufactL11§"e_ or the premises of the
_1{3lV*V1wSepte13:1ber 2004 and any
input by the manufactuter of final
prodjoet or oro*J:it:ler otltput on or after 1031 September
a benefit available "under the statutory
";e+e{r1eienIs*,t. be; sought to be denied under the circular.
' 3. It ie" this baekgound, the validity of the ci3'(:ular_
* is questioned as ultra vires the provisions of not only
-‘ of Rules but also of the Act; that the circular not only
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creates a liability far in excess of the provisions of-the Act
but aiso virtually anmiis the effect of the
to the assesses under Ruie 3 of the Rules.’ it it _ _
4. Appearing on behalf of the””petitioner,” i f i
learned counsel, would V€Vhf’3IfIf1b(A:’i’,iiC1__t:I:§A’;A’.V_i.
petitioner though has approached
of the issue of show replffizlg to the
show cause notice is or as the show
cause notice ;recites the is questioned in
this writ ‘theiicontehts of the circuiar issued
by thefhigher: the Board, binds all the
officers functioning itsrider the Board and the assessing
‘~ will have–no other option even when the fallacy
_o£” thee pointed out; that repiying to the show
cause I1otieeV_ putting forth such contentions before the
*..assess’ing authority will be an exercise in futility,
when the petitioner is questioning the very
of the circular on the strength of which the show
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cause I”}.{)’€:iC€ is issued; that it is appropriate this court
should examine the legality of the circular even git this
stage, so that the legal position is settled etc. V i
5. Learned counsel for the petitioner
through the Show cause notice,»-. the
firovisions of the Act and the VRuiet=;,
cause notice does not “‘thati.t.i1e ‘L
based on the circular dges; stipportlifrom the
circular. There is not even re’ :’refe”re11ce to the Board
circular.
6. Be: that V fifixid that irrespective of the
merits of is not very feasible or advisable
V. to €_jv9s’.2’§}.’.I£];’1__fI:1€lLh(‘3a ‘question at this stage even before the
V’i~…aufha_r:ti¢sl examined the question in the context of
the fact sitiiation of the pefifioner and have come up with
otdei; ‘qtiantifying the liability of the petitioner under
‘tiie Vplfovisions of the Act.
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9. While it is a settled principle that tire constitutional
validity of even a statutory provisions is not as
an academic exercise, unless the
a clear cause of action to questiozgi T
in the sense the provisions
particular petitioner of ” fire
adverse consequence person,
examining the V produced at
Annexure-A,” has a statutory
force to i an internal matter
‘ vview into the provisions
and havitigéiissuerii for the sake of enforcement
of the” tprovisioris’ of the Act in a uniform manner
C011I1¥SIjV and may be with a View to apprise
eve3{‘1__the as to the stand of the board, so that
V . the “asseissees can either suitably comply with or avail
it it as”‘i3:1ay be advisable as and when they sufler any
. sfifierse orders, does not arise nor is neoessary at this
‘~ _ imfoiee remeche~s’
10. i am of the View that there is no need to examine
even the validity of the circular at this stage and “is only
on the application of the contents of the ‘the
petitioner suifers an adverse order ‘»_sU;e21_ order
quantifying the liability under tile ”
contravention of the statuteiy pfoazisions,ifis*’iie:1;iief_j”; of
Act or the Rules, there mayyknot for this
court to examine the it is to the petitioner
to file its objections notice within a
“ten ii’o1n~–today before the authority
and foe ” .
.11. _Witiio1.it” to the petitioners options to
o
as are available to the petitioner in
‘petition is dismissed at this stage without
going merits of the circular or the merits of the
<._show eaiise notice.
Sd/–
Iudge
a new: