2015 (2) TMI 134 - HC - Central Excise

Demand of differential duty - Imposition of interest and penalty - Held that - Noticing that the previous writ petition has been dismissed as there is an effective efficacious remedy available and the appellant having chosen to prefer the appeal before the appellate authority, the Commissioner of Central Excise (Appeals), Tiruchirappalli, vide appeal No.113/08- TRY, as against the original order dated 06.06.2008 and as the appellant's contention on the point of limitation also warrants consideration, it is always open to the appellant to go before the appellate authority for adjudication of the matter in accordance with law. - Therefore, as the finding of the learned single Judge as to the appeal remedy is not contrary to law and in view of the availability of efficacious alternative remedy, the stand taken by the learned single Judge to that effect warrants no interference. - appellant has to move the appellate authority and contest the matter keeping all the points raised before this Court open, including the limitation aspect, and in that event, the appellate authority shall decide the matter on merit and in accordance with law, untrammeled by any of the observations made by this Court in the earlier proceedings independently. - Petition disposed of.

Summary

Issues:
Challenge to order of learned single Judge dismissing writ petition and appeal against final order passed by original authority.

Analysis:
1. The original authority confirmed a demand of Rs. 50,47,395 on a company for differential service tax, interest, and penalties. The appellant challenged a show cause notice issued in 2004, which was dismissed, leading to subsequent appeals and review applications.

2. The appellant argued that filing an appeal did not negate the right to seek redressal through a writ petition. The High Court's jurisdiction under Article 226 includes issues like limitation, which the single Judge did not consider adequately.

3. The respondent contended that since the appellant had already filed an appeal before the Commissioner of Central Excise, the writ petition should not have been entertained. The single Judge relied on a Supreme Court decision emphasizing the importance of statutory forums for redressal in fiscal matters.

4. The Court observed that the show cause notice had merged with the final orders, leading to the dismissal of the writ petition. The appellant's appeal before the Commissioner of Central Excise was still pending, indicating an available remedy.

5. Referring to Section 73 of the Act, the appellant argued that the limitation period for demanding service tax had expired. However, the respondent maintained that the appellant should raise this plea in the proper forum.

6. The Court upheld the single Judge's decision, emphasizing the availability of an alternative remedy through the appellate authority. The appellant was advised to contest the matter before the appellate authority, keeping all points raised open for consideration, including the limitation aspect.

7. In conclusion, the writ appeal was disposed of, directing the appellant to pursue the matter before the appellate authority. The Court emphasized that the appellate authority should decide the case on merit and in accordance with the law, independent of any previous observations made by the Court.