2017 (11) TMI 1612 - HC - Central Excise

Maintainability of petition - alternative remedy - time limitation - Held that - as against the impugned order, the petitioner has an effective alternate remedy of filing an appeal before the CESTAT. Whether the appeal was presented within time and whether the date of receipt of the Order-in-Original as stated by the assesse is correct or not is a factual issue. Therefore, the petitioner has to necessarily avail the appeal remedy - petition dismissed being not maintainable.

Summary

Issues:
Challenge to Order-in-Original dated 28.12.2016 - Service tax demand, interest, and penalties under various sections of the Finance Act, 1994. Appellate authority's decision on appeal petition being time-barred. Availability of alternate remedy of filing an appeal before CESTAT. Maintainability of the writ petition.

Analysis:
The petitioner contested the Order-in-Original dated 28.12.2016, challenging the service tax demand of ?3,05,826 under the proviso to Section 73 of the Finance Act, 1994. Additionally, interest on the amount under Section 75, penalty equivalent to tax demanded under Section 78, and a penalty of ?10,000 under Section 77 were imposed. An appeal was lodged by the petitioner before the appellate authority, which deemed the appeal petition time-barred. The appellate authority noted evidence indicating the petitioner received the Order-in-Original on 31.01.2017, contrary to the petitioner's claim of receiving it on 04.03.2017, deeming the latter submission incorrect.

The High Court acknowledged that the petitioner had an available remedy of appealing to the CESTAT against the impugned order. The issue of whether the appeal was filed within the stipulated time frame and the accuracy of the date of receipt of the Order-in-Original, as asserted by the assessee, were deemed factual matters. Consequently, the court held that the petitioner must pursue the appeal remedy before the CESTAT, given the factual nature of the issues in question.

In light of the above, the High Court concluded that the writ petition was not maintainable and subsequently dismissed it. The petitioner was granted the option to approach the CESTAT if advised to do so. Should the petitioner choose to move to the CESTAT, the period from the filing date of the writ petition (13.10.2017) until the receipt of the certified copy of the order would be excluded when calculating the limitation period. No costs were awarded, and any connected miscellaneous petition was closed as a consequence of the judgment.