2015 (2) TMI 429 - HC - Central Excise

CENVAT Credit - Maintainability of appeal - Jurisdiction of authority - Violation of principle of natural justice - Held that - It is an admitted fact that the disputed transactions have been taken place within the jurisdiction of the authority who passed the impugned order. If that being the factual position, it cannot be contended that the authority who passed the impugned order does not have jurisdiction. Further, it is seen that before passing the impugned order, the petitioner was issued with a show cause notice and they also filed their reply to the same. Thereafter, personal hearing was also given to the petitioner which was attended through their Counsel. Therefore, it is clear that there is no violation of principles of natural justice as contended by the petitioner. It can not be said that the authority has passed the order without jurisdiction. Further it is to be noted at this juncture, that the petitioner on receipt of show cause notice, filed their reply to the show cause notice; participated in the adjudication proceedings and finally suffered with the order passed on merits. Therefore, the petitioner cannot now contended that the third respondent is not having jurisdiction. Moreover, it is well settled that in cases involving fiscal nature, availing of statutory appellate remedy has to be first exhausted and the party cannot come directly to this Court and file a petition under Article 226 of the Constitution of India. When an alternative remedy is available, more particularly, in the cases of fiscal nature, invoking of the jurisdiction under Article 226 of the Constitution of India, is not permissible. - Following decision of Radha s case 2015 (2) TMI 437 - MADRAS HIGH COURT - writ petition is not maintainable - Decided against assessee.

Summary

Issues:
Challenge to order in Original No.03/CE/COMMR/2014 | Jurisdiction of authority | Violation of principles of natural justice | Entitlement to avail MODVAT/CENVAT credit | Maintainability of writ petition

Analysis:
The writ petition challenges the order in Original No.03/CE/COMMR/2014 dated 21.11.2014 passed by the third respondent. The petitioner argues that the order lacks jurisdiction and violates natural justice. The Senior Counsel contends that the recipient unit is entitled to avail CENVAT credit, emphasizing that the third respondent did not consider this aspect, rendering the order jurisdiction-less.

The court rejects the petitioner's contentions, stating that the disputed transactions occurred within the jurisdiction of the authority issuing the impugned order. It highlights that the petitioner received a show cause notice, responded to it, and participated in the adjudication proceedings, indicating no violation of natural justice. The court asserts that the question of entitlement to MODVAT/CENVAT credit is a mixed question of law and fact, falling under the jurisdiction of the appellate Tribunal, not the High Court under Article 226.

The Senior Counsel cites the Supreme Court's decision in Whirlpool Corporation case to support the writ petition's maintainability when orders are passed without jurisdiction. However, the court distinguishes this case, emphasizing that the authority did not act without jurisdiction. It references various decisions emphasizing the exhaustion of statutory appellate remedies in fiscal matters before approaching the High Court under Article 226.

The court concludes that the writ petition is not maintainable and dismisses it, granting the petitioner liberty to appeal before the appellate Tribunal. The connected Miscellaneous petition is also dismissed without costs, emphasizing the importance of following the statutory appellate process in fiscal matters.