2016 (2) TMI 912 - HC - Service Tax

When the petitioner has got appeal remedy before the CESTAT the averment stated in the affidavit cannot be accepted. In these circumstances, the Writ Petition is liable to be rejected.

Summary

Issues:
- Maintainability of Writ Petition when appeal remedy available before CESTAT
- Jurisdiction under Article 226 of the Constitution of India

Analysis:
The petitioner filed a Writ Petition seeking a writ of certiorari to quash the Order passed by the 2nd respondent in Appeal No.349/2015 dated 30.11.2015. The respondents argued that the petitioner has an appeal remedy available before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), hence the Writ Petition should be dismissed. The petitioner contended that the Writ Petition is maintainable because the 2nd respondent not only held the appeal as time-barred but also decided on merits. The petitioner claimed that since the 2nd respondent found the appeal time-barred, they should not have delved into the merits. However, the petitioner stated in the affidavit that they have no other efficacious remedy available, justifying their invocation of Article 226 of the Constitution of India.

The court noted that since the petitioner had an appeal remedy before CESTAT, the claim in the affidavit that no alternative remedy was available could not be accepted. Consequently, the court held that the Writ Petition is liable to be rejected. The Writ Petition was dismissed, allowing the petitioner to challenge the impugned order before CESTAT. No costs were awarded, and the connected miscellaneous petition was closed.