IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.10186/2017 AND WRIT PETITION Nos.10571-10572/2017 (T – RES) BETWEEN:
SRI SURAJ S/O JAYA AGED ABOUT 52 YEARS PROPRIETOR M/S. SAI SECURITIES ANDRADE ARCADE DIANA CIRCLE, UDUPI-576101 R/AT FLAT No.B-32 CITADEL APARTMENT, KADRI MANGALURU-575003. …PETITIONER (BY SRI GIRISH.M.K., ADV.) AND:
1. THE UNION OF INDIA REP. BY SECRETARY MINISTRY OF FINANCE NEW DELHI-110001.
2. THE COMMISSIONER OF CENTRAL EXCISE 6TH FLOOR, TRADE CENTER BUNTS HOSTEL ROAD MANGALURU-575003. …RESPONDENTS (BY SRI K.V.ARAVIND, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO DEFER THE RECOVERY PROCEEDINGS AGAINST THE PETITIONER AND HIS PROPRIETORSHIP CONCERN M/S. SAI SECURITIES BY A COERCIVE PROCESS PURSUANT TO THE PENALTY ORDER DATED 29.09.2015 PRODUCED AT ANNEXURE-B AND ALSO PURSUANT TO THE NOTICE DATED 13.01.2017 AS PER ANNEXURE-E FOR ADJUDICATION OF SERVICE TAX FOR THE PERIOD 2013-14, 2014-15 AND 2015-16 [UPTO 31ST DECEMBER 2016] PENDING ADJUDICATION OF THE APPEAL BEARING S.T.NO.22289/2015-DB PENDING BEFORE THE CUSTOMS, EXCISE AND SERVICE APPELLATE TRIBUNAL BANGALORE.
THESE PETITIONS COMING ON FOR ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Learned counsel for the respondent-Revenue has filed a memo seeking for dismissal of the writ petitions and the same is extracted hereunder:
“The petitioner in the above matter has sought for mandamus directing the respondents to defer recovery proceedings against the petitioner pursuant to the order dated 28/9/2015 produced as Annexure-B. The petitioner being aggrieved against the said order has approached the CESTAT, Bangalore, in Appeal No.ST.No.2289/2015- DB and the same is pending consideration. In view of invoking the remedy of statutory appeal, challenge to the order dated 28/9/2015 before this Hon’ble Court does not survive.
The petitioner has further challenged the notice dated 13/1/2017 produced as Annexure-E contending that all the documents required to be produced as per the above notice are in the custody of the respondents in view of the seizure and the same cannot be complied with. During pendency of the above matter, the petitioner was requested to inspect the documents in custody of the respondents and petitioner could not identify any documents relevant for preparation for their financial statements as required under the notice dated 13/1/2017. Further the petitioner vide letter dated 24/2/2018 replied that financial statements of his firm are not finalized and requested to finalise their service tax liability based on Form 26AS. Accordingly detailed show cause notice has been issued dated 25/4/2018. In view of the factual position stated above, challenged to the notice dated 13/1/2017 would render infructuous.
Wherefore, it is respectfully prayed that this Hon’ble Court may be pleased to dismiss the above writ petition as infructuous in the interest of justice and equity.”
2. No objections have been filed by the petitioner for the said memo.
In view of the aforesaid, writ petitions stand dismissed with liberty to the petitioner to file objections to the show cause notice dated 25.04.2018, if not filed and pursue the appeal No.ST.No.2289/2015-DB pending before the CESTAT, Bengaluru.
Sd/- JUDGE NC.