2022 (8) TMI 1397 - HC - Service Tax

Maintainability of petition - availability of alternative remedy - service of SCN - writ petition was filed primarily on the ground that notice of hearing was not received by the appellant and therefore could not appear before the adjudicating authority - HELD THAT - Admittedly the order passed by the Joint Commissioner Service Tax-I Kolkata is an appealable order and the appeals lies to the Commissioner of Central Excise Kolkata. Whether notice was served on the appellant or not is not purely a question of law but a mixed question of fact and law. It may require examination of original documents despatch register etc. Therefore it will not augur well for a Writ Court to examine these disputed questions of fact and the same can be effectively done before the appellate authority who will have enough jurisdiction to examine all the records which are on the file of the adjudicating authority. The appellant should not bypass the appellate remedy which is not only efficacious but effective as well. This principle is more rigidly applied in matters arising under tax in laws which provides for hierarchy of remedies and such hierarchy of remedies available under the Act should not be lightly interfered with - thus the appellant should pursue the appellate remedy available under the Act. While affirming the view taken by the Learned Single Bench that the writ petition is not maintainable as the appellant has an effective and efficacious alternative remedy of appeal before the Commissioner of Central Excise Kolkata that portion of the order passed by the Learned Single Bench is affirmed and all other findings with regard to service of notice on the appellant stands vacated leaving it open to the appellant to raise all contentions before the first appellate authority - the appeal is disposed of.

Summary

Issues: Delay in filing restoration application, challenge against order-in-original, service of notice, maintainability of writ petition, alternative appellate remedy

1. Delay in filing restoration application:
The judgment addresses a delay of 20 days in filing the restoration application. The court, after perusing the affidavit filed in support of the petition, finds that sufficient cause has been shown. Consequently, the application for restoration is allowed, and the appeal is restored to the court's file.

2. Challenge against order-in-original:
The intra-Court appeal is directed against an order dated 14th July, 2017, in a specific writ petition. The appellant challenged the order-in-original passed by the Joint Commissioner, Service Tax-I, Kolkata, primarily on the grounds of not receiving a notice of hearing, which impeded their appearance before the adjudicating authority. The affidavit-in-opposition claimed that all previous notices were received and acknowledged, except for the last notice. The department argued that the procedure under Section 37C of the Central Excise Act was followed diligently. Despite the appellant's claims, the court dismissed the writ petition, leading to the appeal.

3. Service of notice and maintainability of writ petition:
The court emphasizes that the issue of whether notice was served on the appellant or not involves a mixed question of fact and law, which necessitates examination of original documents and registers. The court asserts that bypassing the appellate remedy in matters concerning tax laws is not advisable, as the appellate authority has the jurisdiction to scrutinize all relevant records. Therefore, the court affirms that the appellant should pursue the appellate remedy available under the Act, rather than seeking relief through a writ petition.

4. Alternative appellate remedy:
The judgment upholds the view that the appellant has an effective and efficacious alternative remedy of appeal before the Commissioner of Central Excise, Kolkata. The court affirms the decision that the writ petition is not maintainable due to the availability of the appellate remedy. The appellant is granted 60 days to file an appeal before the first appellate authority, emphasizing that all contentions can be raised before the appellate authority without being influenced by previous observations made in the writ petition.

5. Conclusion:
In conclusion, the court disposes of the appeal, stating that there shall be no order as to costs. The parties are instructed to receive a certified copy of the order promptly upon fulfilling all legal formalities.