Simplex Infrastructures Ltd. Vs Joint Commissioner of Central Tax (Karnataka High Court)
In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative remedy of appeal available under the Act, no exception can be found with the Writ Court in rejecting the writ petition as not maintainable, but having regard to the peculiar facts and circumstances of the case, as in the present case when the appellants have approached the Writ Court with an alternative relief of seeking permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference.
Thus, it is clear that in the absence of power vested with the appellate authority to condone the delay, in the peculiar facts and circumstances of the case, the ends of the justice would be met in permitting the appellants to file an appeal instead of adjudicating the matter on merits subject to conditions as aforesaid.
For the reasons aforesaid, Writ appeal is allowed in part subject to payment of costs of Rs.1,00,000/- (Rupees One Lakh) payable by the appellants to the Chief Minister’s Covid-19 Relief Fund within a period of two weeks from today.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
This is an intra Court appeal filed under Section 4 of the Karnataka High Court Act, 1961, assailing the order of the learned Single Judge dated 24.5.2021 passed in W.P.No.10766/2020, whereby the writ petition filed by the petitioners/appellants has been dismissed.
2. Appellant No.1 is a private limited company and appellant No.2 is its Vice President. The appellants assert that appellant No.1 – company is engaged, inter alia, in the business of execution of civil works contracts, inter alia, numerous Government undertakings, such as the Bangalore Metro Rail Corporation Ltd., Bangalore Development Authority, etc. The appellants contend that in the course of business, appellant No.1 was awarded a contract by Tata Housing Development Corporation Ltd., for construction of residential buildings in the Promont Hilltop residential project in Bengaluru. As per the terms of the contract between the parties and in the course of constructing such residential buildings, appellant No.1 was required to manufacture concrete mix at the site of the construction itself for exclusive use in such construction activity. The appellants claim that the concrete mix was duly manufactured by appellant No.1 at the site of the said residential building and was transported to the building site from the batching plant which was merely adjacent to the project site. Thus, there was also no removal of the concrete mix as it was captively used at the site of the residential project itself.
3. The manufacture of concrete mix at project site for the purpose of construction was exempt from the levy of excise duty in terms of Notification No.4/1997-CE, dated 1.3.1997. It appears, similar notifications came to be issued under the Act. The latest of such notification which is applicable to the subject tax period is Notification No.12/2012-CE, dated 17.3.2012.
4. The relevant entry reads thus;
