2021 (4) TMI 1207 - HC - Central Excise

Maintainability of petition - availability of alternative remedy - order passed against a dead person - HELD THAT - The contention that the order was passed against a dead person is incorrect, as the legal representative/son of the deceased participated in the enquiry proceedings and thereafter, the final order was passed by the Commissioner and a copy of the same was also communicated to the son of the deceased. This being the factum, the grounds raised in the writ petition deserve no merit for consideration. It is clear that the petitioner has to exhaust the statutory remedy provided under the Act and this Court, under Article 226 of the Constitution of India, cannot adjudicate disputed facts, which are all to be adjudicated with reference to the documents as well as the evidences to be produced before the competent authority and before the Appellate Tribunal. In the absence of establishing such facts with reference to the records, High Court cannot place appreciation on those facts now raised by the petitioner in the present writ petition. The petitioner has to exhaust the statutory remedy, if at all chosen to do so. This being the factum established, the petitioner is at liberty to approach the Tribunal under Section 86 of the Act by following the procedures contemplated - Petition disposed off.

Issues Involved:
1. Validity of the service tax order issued against a deceased person.
2. Participation of the legal representative in the proceedings.
3. Requirement to exhaust alternative appellate remedies before filing a writ petition.

Detailed Analysis:

1. Validity of the Service Tax Order Issued Against a Deceased Person:
The petitioner argued that the impugned order dated 02.12.2016, confirming the levy of service tax, was passed against a deceased person, rendering it perverse. The petitioner contended that no statutory order can be passed against a dead person, necessitating the present writ petition to quash the order.

2. Participation of the Legal Representative in the Proceedings:
The respondent countered that the deceased's son, Mr. S.Subin Vinoth Kumar, participated in the enquiry proceedings and submitted his objections/defense statements. The Commissioner of Central Excise, Puducherry, considered these objections and issued the final order on 02.12.2016. The order was communicated to the son of the deceased, indicating that the contention of the order being passed against a dead person is incorrect. The court found merit in this argument, noting that the legal representative's participation validated the proceedings.

3. Requirement to Exhaust Alternative Appellate Remedies Before Filing a Writ Petition:
The court emphasized that the petitioner must exhaust the appellate remedy provided under Section 86 of the Finance Act, 1994, which allows an aggrieved person to appeal to the Appellate Tribunal against an order passed by the Commissioner of Central Excise. The court cited the case of Hyundai Motor India Limited vs. Deputy Commissioner of Income Tax, Chennai & Anr., highlighting that when an effective alternative remedy is available, a writ petition cannot be maintained. The court reiterated that unnecessary or routine invasion into the statutory powers of competent authorities should be restrained by constitutional courts to uphold the separation of powers doctrine.

The court further referenced several judgments, including City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors., KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra and Ors., and Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal, to support the principle that writ petitions should not be entertained when adequate alternative remedies are available unless exceptional circumstances exist. The court concluded that the petitioner must approach the Tribunal under Section 86 of the Act by following the prescribed procedures.

Conclusion:
The court disposed of the writ petition, directing the petitioner to exhaust the statutory remedy by approaching the Appellate Tribunal. The court underscored the importance of maintaining institutional respect and adhering to the principle of exhausting alternative remedies before seeking judicial intervention through writ petitions.

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