2019 (11) TMI 839 - HC - Service Tax

Maintainability of appeal - Section 35 (F) of the Central Excise Act, 1994 or Section 129 (E) of the Custom Act - Initiation of recovery proceedings - Section 87 of the Finance Act - HELD THAT - It is admitted position that against the order passed by the Additional Commissioner Central Excise Service Tax Department, Dhanbad, the appeal was filed by the petitioner before the Appellate Authority, which dismissed the appeal of the petitioner, and thereafter the petitioner has preferred the appeal before the Customs, Excise Service Tax Appellate Tribunal, Kolkata, which is pending. The petitioner has also deposited 10% of the amount as assessed, before the Appellate Tribunal. The reliefs prayed for by the petitioner can be made by the petitioner before the Customs, Excise Service Tax Appellate Tribunal, Kolkata, where the appeal of the petitioner is admittedly pending - Application disposed off.

Summary

Issues:
1. Prayer for issuance of a direction to stay recovery proceedings under Section 87 of the Finance Act.
2. Interpretation of the Department's Circular dated 16.9.2014 regarding coercive measures for recovery during appeal pendency.
3. Appeal process from Additional Commissioner to Appellate Authority to Customs, Excise & Service Tax Appellate Tribunal.
4. Counter affidavit by Revenue regarding notice under Section 87 of the Finance Act.
5. Infructuous nature of the writ application due to specific statement in the counter affidavit.
6. Availability of reliefs for the petitioner before the Customs, Excise & Service Tax Appellate Tribunal.

Analysis:

The judgment of the High Court of Jharkhand pertains to an application seeking a direction to halt recovery proceedings under Section 87 of the Finance Act. The petitioner had appealed against an order by the Additional Commissioner Central Excise & Service Tax Department, which was subsequently dismissed by the Appellate Authority. The petitioner then approached the Customs, Excise & Service Tax Appellate Tribunal in Kolkata, where the appeal is pending, having deposited 10% of the assessed amount. The counter affidavit by the Revenue acknowledged the appeal process and stated that no further action would be taken after issuing the notice under Section 87 once the appeal was filed. Consequently, the court found the writ application to be infructuous based on the statement in the counter affidavit, and highlighted that the relief sought by the petitioner could be pursued before the Customs, Excise & Service Tax Appellate Tribunal, where the appeal was pending. Therefore, the application was disposed of with the mentioned observations.

This judgment underscores the significance of procedural adherence and the hierarchy of appellate forums in matters of tax disputes. It elucidates the role of counter affidavits in clarifying the stance of the Revenue and its impact on the course of legal proceedings. The court's decision to dismiss the application emphasizes the principle of exhaustion of remedies before the appropriate tribunal, reinforcing the importance of pursuing relief within the designated legal framework. Overall, the judgment exemplifies a pragmatic approach to resolving disputes within the confines of established legal procedures and administrative protocols.