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2017 (8) TMI 601 - HC - Service TaxAlternative remedy of appeal - principles of Natural Justice - Held that - The general principles of law to be followed while entertaining a writ petition, when an alternative remedy is available, as per the decision of the Hon ble Apex Court in U.P.State Spinning Co. Ltd. Vs. R.S.Pandey and Another 2005 (9) TMI 634 - SUPREME COURT OF INDIA . Violation of principles of natural justice can be urged before the appellate authority. If the original authority has taken note of some other provision, not stated in the SCN, the same also can be urged before the appellate forum. Writ petitioner can always raise, tenable grounds before the appellate authority, and as rightly observed by the writ Court that, if any appeal is preferred, the concerned appellate forum has to look into the substance of the reasoning and then to decide as to whether the order impugned, in the writ petition, has to be sustained or not. Petition dismissed - decided against petitioner.
Issues Involved:
1. Maintainability of the writ petition in the presence of an alternative remedy. 2. Alleged illegality and non-speaking nature of the order passed by the Deputy Commissioner of Service Tax. 3. Violation of principles of natural justice. Issue-wise Detailed Analysis: 1. Maintainability of the Writ Petition: The primary issue addressed was whether the writ petition was maintainable given the availability of an alternative remedy. The court reiterated the well-established principle that when an effective and alternative remedy is available, a writ petition should not ordinarily be entertained. This principle was supported by multiple precedents cited, including Union of India v. T.R. Verma, AIR 1957 SC 882, and C.A. Ibrahim v. ITO, AIR 1961 SC 609. The court emphasized that the statutory remedy must be exhausted before resorting to writ jurisdiction, particularly in fiscal matters. The court referred to the decision in Titaghur Paper Mills Co. Ltd. v. State of Orissa, 1983 (2) SCC 433, which held that the Act provides a complete machinery to challenge an order of assessment, and such orders can only be challenged by the mode prescribed by the Act. 2. Alleged Illegality and Non-speaking Nature of the Order: The appellant contended that the order passed by the Deputy Commissioner of Service Tax was patently illegal and non-speaking. The court acknowledged the appellant's reliance on the Hon'ble Apex Court's decision in TATA ENGINEERING & LOCOMOTIVE CO. LTD. v. COLLECTOR OF C.EX., PUNE, 2006 (203) ELT 360 (SC), which emphasized the necessity of a speaking order. However, the court held that even if the original authority had passed a cryptic or non-speaking order, the appropriate remedy would be to appeal to the appellate authority, which is bound to consider such submissions. The court noted that in the Tata Engineering case, the procedure of approaching the forums constituted under the Act was followed. 3. Violation of Principles of Natural Justice: The appellant argued that there was a violation of the principles of natural justice as the authority invoked a rule not mentioned in the show cause notice. The court held that any violation of principles of natural justice could be urged before the appellate authority. The court cited the Hon'ble Apex Court's decision in Shauntlabai Derkar and Another v. Maroti Dewaji Wadaskar, (2014) 1 SCC 602, which recognized exceptions to the rule of alternative remedy, such as violation of principles of natural justice. However, the court concluded that the writ petitioner should raise these grounds before the appellate authority. Conclusion: The court dismissed the writ appeal, emphasizing that the petitioner had not made out a strong case to entertain the writ petition in the presence of an alternative remedy. The court allowed the appellant four weeks to file a statutory appeal to the Commissioner of Appeals and directed the Commissioner to dispose of the appeal within two months, condoning the time consumed in the litigation before the High Court. Order: The writ appeal was dismissed with no costs, and directions were given to the appellant regarding the filing and disposal of the statutory appeal.
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