The court emphasized that rectification under Section 74 of the Finance Act does not allow reopening of substantive issues already adjudicated, and the writ jurisdiction is discretionary when alternate remedies exist.

JUDGMENT :

Hiten S. Venegavkar, J.

1. The present writ petition preferred under Article 226 and 227 of the Constitution of India. The petitioner, a government-registered civil contractor, has approached this court seeking a declaration that the common order dated 20.03.2023, passed by the Additional Commissioner, CGST and Central Excise, Nagpur-1 for the financial years 2015-2016 and 2016-2017, is non-est and bad in law. The petitioner further seeks a declaration that in view of Notification No. 25/2012, dated 20.06.2012, issued by the Ministry of Finance under Section 93 of the FINANCE ACT , 1994, (for short “the Act”) the works of construction of roads executed for government departments are exempted from the levy of service tax. The petitioner also prays for quashing and setting aside the order dated 19.03.2025, passed by the Joint Commissioner, CGST and Central Excise, Aurangabad, rejecting his application for rectification of mistake under Section 74 of the Act.

2. The factual matrix is that the petitioner is engaged exclusively in executing civil construction contracts for various departments of the Government of Maharashtra, primarily for the construction of roads through the Public Works Department. The petitioner asserts that, in light of the Ministry of Finance Notification No. 25/2012-ST, dated 20.06.2012, services relating to construction of roads for the Government are wholly exempt from service tax. Consequently, the petitioner has not registered under the Act for service tax purposes.

3. According to the petitioner, on 21.01.2021, the Jurisdictional Range Superintendent of Central Excise issued a letter seeking details of the petitioner's turnover for financial year 2015-16 based on data obtained from MAHAVAT records. A show-cause notice thereafter was issued, demanding service tax on the assumption that the petitioner rendered taxable services. The petitioner replied on 12.05.2022, submitting income tax returns, Form 26 AS, balance sheets and certificate issued by the Public Works Department confirming that the works executed were related to government road construction. Despite this, the Deputy Commissioner confirmed the demand by order dated 24.03.2023 The petitioner preferred an appeal under section 85 of the Act before the Commissioner (appeals), CGST and CEX, Nagpur-1, which was partly allowed by order dated 26.07.2024. The Appellate Authority confirmed a limited service tax demand of Rs 30,272/- with corresponding penalties under sections 77 and 78 of the Act.

4. The petitioner submits that notwithstanding the finality attained in respect of Financial Year 2015-2016, the Additional Commissioner again issued an order dated 20.03.2023, imposing service tax for Financial Year 2015-2016 and 2016-2017. The petitioner therefore, on 02.02.2025, moved an application before various authorities, including the Joint Commissioner, CGST, seeking rectification of the mistake under section 74 of the Act specifically in respect of 2015- 16 period, which had already been adjudicated upon. The petitioner's contention is that the re-imposition of service tax for Financial Year 2015-16, after the appellate order had attained finality, is impermissible in law and violates the doctrine of merger as recognized by the Hon’ble Supreme Court in Chandi Prasad and others vs. Jagdish Prasad and others 2004(8) SCC 724, Surinder Pal Soni vs. Sohan Lal (Dead) through Legal Representatives 2020 (15) SCC 771 and V. M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax 2000 (5) SCC 373. The petitioner thus asserts that the impugned order of the Joint Commissioner rejecting his rectification application is arbitrary, illegal and contrary to the principles of natural justice.

5. P