Guruvayur Devaswom Managing Committee v. Central Board of Excise and Customs, Assistant Commissioner of Central Excise (Customs and Service Tax), Thrissur Division, and Department of Revenue Finance, Government of India

1 W.P.(C)No.4018 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ## **`W.P.(C)NO.4018 OF 2016`** ## **`PETITIONER:`** ``` THE GURUVAYUR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ITS ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR, PIN – 680 101. SUO MOTU CORRECTED AS PER ORDER DATED 15.02.2023. ``` ``` BY ADVS. P.GOPAL ``` ``` SRI.H.KARTHIK SESHADRI SHRI.VIPIN DAS T.K., SC, KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES ``` ## **`RESPONDENTS:`** - **`1 CENTRAL BOARD OF EXCISE AND CUSTOMS REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110 001.`** - **`2 ASSISTANT COMMISSIONER OF CENTRAL EXCISE OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, THRISSUR DIVISION, SAKTHAN THAMPURAM NAGAR, THRISSUR-680 001.`** - **`3 DEPARTMENT OF REVENUE FINANCE REPRESENTED BY ITS SECRETARY, GOVERNMENT OF INDIA, NEW DELHI-110 001. BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.4018 of 2016 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner Guruvayur Devaswom Managing Committee has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to pass orders on Ext.P5 representation dated 11.02.2014 and Ext.P6 representation dated 19.12.2014 submitted by the petitioner under Section 93 of the Finance Act, 1994, claiming exemption from the purview of service tax under the Finance Act. The petitioner has also sought for a writ of certiorari to quash Ext.P3 notice dated 20.12.2013, Ext.P7 notice dated 03.12.2015 and Ext.P9 notice dated 13.01.2016 issued by the 2[nd] respondent Assistant Commissioner of Central Excise; and a writ of mandamus forbearing the respondents from initiating action on the basis of Exts.P3, P7 and P9 notices till orders are passed by respondents 1 and 3 on Exts.P5 and P6 representations submitted by the petitioner before the 1[st] respondent. 2. On 03.02.2016, when this writ petition came up for admission, this Court admitted the matter on file and passed the following order; “Learned Senior Standing Counsel for the Central Board of 3 W.P.(C)No.4018 of 2016 Excise and Customs takes notice. There will be an interim order that while the Central Board of Excise and Customs may decide on any matter pending at that end relating to the issues raised by the petitioner on the basis of the statutory provisions including the exemption orders, Exts.P3, P7 and P9 will stand stayed or a period of six months. The respondents, if so advised, will place their counter affidavits in the meanwhile.” 3. On 14.11.2016, along with I.A.No.18815 of 2016, the petitioner has placed on record Exts.P10 to P12 additional documents. Paragraphs 2 to 4 of the affidavit filed in support of that interlocutory application read thus; “2. The writ petition is filed by the petitioner praying for quashing Exts.P3, P7 and P9 notices issued by the 2[nd] respondent, to direct respondents 1 and 3 to pass orders on Exts.P5 and P6 representations submitted by the petitioner under Section 93 of the Finance Act claiming exemption from the purview of service tax under Finance Act, 1994, to declare that the petitioner-Guruvayur Devaswom Managing Committee is eligible for exemption under clauses 5(a), 5(b), 13(c), 24, 39, 39(q) and 29(zb) of Ext.P4 notification from the purview of payment of service tax and for other reliefs. 3. During the pendency of the writ petition, on the representation of the applicant-Devaswom dated 12.02.2016, the Department of Revenue, Ministry of Finance, Government of India has clarified clause 5(a) of Ext.P4 notification dated 20.06.2012 bringing a trust or institution registered under sub-section 23(c)(v) of Section 10 of the Income Tax Act or a body or authority covered under clause 4 W.P.(C)No.4018 of 2016 (23BBA) of Section 10 of the Income Tax Act. A true copy of the notification No.40/2016-service tax dated 06.09.2016 is produced herewith as Ext.P10. On the basis of Ext.P10 notification, circular No.200/10/2016-service tax dated 06.09.2016 has been issued by the Ministry of Finance for implementation of the same by giving wide publicity. A true copy of the circular dated 06.09.2016 is produced herewith as Ext.P11. Exts.P10 and P11 has been forwarded to the Devaswom by the Ministry of Finance, Department of Finance, Government of India along with their letter dated 12.09.2016. A true copy of the letter dated 12.09.2016 is produced herewith as Ext.P12. 4. It is respectfully submitted that Devaswom is exempted under Section 10(23BBA) of the Income tax Act and hence by virtue of Ext.P10 notification read with Ext.P11 circular the Devaswom is to be exempted from the purview of service tax.” 4. Heard the learned Standing Counsel for the petitioner and also the learned Senior Standing Counsel for Central Board of Excise and Customs, for the respondents. 5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted, in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, on Exts.P3, P7 and P9 notices issued by the 2[nd] respondent Assistant Commissioner of Central Excise, whereby the petitioner is required to submit the documents called for in respect of alleged non-payment of service tax under the 5 W.P.(C)No.4018 of 2016 Finance Act, 1994. 6. In **State of U.P v. Brahm Datt Sharma [(1987) 2** **SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 7. In **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. ## 8. In **Union of India v. Vicco Laboratories [(2007) 13** **SCC 270]** the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and 6 W.P.(C)No.4018 of 2016 satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 9. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference is warranted on Exts.P3, P7 and P9 notices issued by the 2[nd] respondent, in exercise of the writ jurisdiction on this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. It is for the petitioner to submit a proper reply to Exts.P3, P7 and P9 notices, within a period of four weeks from 7 W.P.(C)No.4018 of 2016 the date of receipt of a certified copy of this judgment, which shall be considered by the 2[nd] respondent Assistant Commissioner of Central Excise, after affording the petitioner an opportunity of being heard, before proceeding further. With the above direction, this writ petition is disposed of. The legal and factual contentions raised by the petitioner, relying on the additional documents produced as Exts.P10 to P12, along with I.A.No.18815 of 2016, are left open to be raised before the 2[nd] respondent at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** 8 W.P.(C)No.4018 of 2016 ## **APPENDIX** ``` PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE GURUVAYUR DEVASWOM ACT, 1978 ``` ``` EXHIBIT P2 TRUE COPY OF THE ORDER OF THE INCOME TAX DEPARTMENT DT 19-9-2014. ``` ``` EXHIBIT P3 TRUE COPY OF THE SUMMONS DT 20-12-2013 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION NO.25/2012 DT 20-12-2012. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DT 11-2- 2014 SUBMITTED BY THE GURUVAYUR DEVASWOM BEFORE THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DT 19- 12-2014 SUBMITTED BEFORE THE 1ST RESPONDENT. ``` ``` EXHIBIT P7 TRUE COPY OF THE LETTER DT 3-12-2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPLY OF THE DEVASWOM DT 29-12-2015 TO THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER DT 13-1-2016 OF THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE NOTIFICATION NO.40/2016 SERVICE TAX DATED 06.09.2016. ``` ``` EXHIBIT P11 TRUE COPY OF THE CIRCULAR NO.200/10/2016 SERVICE TAX DATED 06.09.2016 HAS BEEN ISSUED BY THE MINISTRY OF FINANCE. ``` ``` EXHIBIT P12 TRUE COPY OF THE LETTER DATED 12.09.2016 FORWARDED BY THE MINISTRY OF FINANCE, DEPARTMENT OF FINANCE, GOVERNMENT OF INDIA TO THE DEVASWOM. ```