Debangsu Basak, J. - (1.) The petitioners have assailed a show-cause-cum-demand notice dated September 7, 2009 in the writ petition. It has assailed the consequent order in original dated February 6, 2012 in the interim application.
(2.) Learned Additional Advocate General appearing for the petitioner has questioned the assumption of jurisdiction to issue the impugned show-cause-cum-demand notice. He has submitted that, the impugned show-cause-cum-demand notice is without jurisdiction in as much as, Service Tax is not payable in respect of a composite contract. According to him, a composite works contract is not exigible to Service Tax when, such contract cannot be dissected into a compartment which allows imposition of Service Tax on a quantum of the contract. He has drawn the attention of the Court to the fact that the subject contracts were entered into before June 1, 2007. He has relied upon (Commissioner, Central Excise and Customs, Kerala v. Larsen & Toubro Ltd., 2016 1 SCC 170) in support of his contentions. He has pointed out that, an order in original has since been passed in the proceeding emanating out of the impugned show-cause-cum-demand notice. Since the impugned show-causecum-demand notice is without jurisdiction, such order in original is also without jurisdiction.
(3.) Learned Advocate appearing for the respondents has submitted that, disputed questions of facts are involved. Consequently, a Writ Court should not intervene when such disputed questions of facts are involved. He has relied upon provisions of the Service Tax Act, 1994 particularly to Section 65 (25b), 65 (105) (zzzq), 65 (105) (zzzza) and 65A of the Act of 1994 and has submitted that, disputes regarding classification existed. Such disputes ought to be decided by the authority prescribed by statute. On the question of maintainability of the writ petition and that, a Writ Court need not enter into disputed questions of fact, learned Advocate for the respondent has relied upon (Union of India v. Guwahati Carbon Ltd., 2012 278 ELT 26 (SC)), (Assistant Commissioner of Sales Tax, Kerala v. P. Kesavan & Co., 1996 81 ELT 7 (SC)), (Stores Supply (India) Agency v. Asstt. Collector of Customs, 1988 38 ELT 583 (Cal.)), (Thansing Nathmal & Ors. v. A. Mazid, Superintendent of Taxes, 1964 AIR(SC) 1419), (Haryana Urban Development Authority & Anr. v. Ruchira Ceramics & Anr., 1996 6 SCC 584), (Sova Solar Ltd. v. Commissioner of Customs, Central Excise & Service Tax, Durgapur, 2016 340 ELT 133), (Commissioner of Income Tax & Ors. v. Chhabil Dass Agarwal, 2014 1 SCC 603). He has drawn the attention of the Court to the reply given by the petitioners to the impugned show-cause-cum-demand notice. According to him, since an order in original has been passed, no interference is called for by the Writ Court.;