2022 (7) TMI 1028 - HC - VAT and Sales Tax

Maintainability of appeal - compliance with the pre-condition to deposit - failure on the part of learned Single Judge to appreciate the issue raised as to the denial of violation of principles of natural justice - HELD THAT - The appellant has challenged Ext.P2 the original order imposing service tax on the appellant. Section 85 of the Finance Act deals with Appeals to the Commissioner of Central Excise (Appeals). Section gives the right to any person aggrieved by any decision or order passed by any adjudicating authority subordinate to the Principal Commission of Central Excise or Commissioner of Central Excise to the Commissioner of Central Excise (Appeals). In view of the specific provision for appeal under the statute, this court is not justified in entertaining the Writ Appeal under Article 226 of the Constitution of India. As far as the condition for pre-deposit for filing the appeal, the same cannot be taken as a ground for entertaining the jurisdiction of this court. When a statute prescribes a precondition for filing the appeal, the same cannot be bypassed by this court. There are no ground to interfere with the judgment of the learned Single Judge - Appeal dismissed.

Summary

Issues:
1. Appeal against imposition of penalty for service tax.
2. Consideration of violation of principles of natural justice.
3. Jurisdiction of the court to entertain the Writ Appeal under Article 226 of the Constitution of India.
4. Pre-condition of deposit for filing an appeal under Section 85 of the Finance Act.

Analysis:
1. The appellant, engaged in training and coaching services, had taken service tax registration under the category of 'Commercial Training and Coaching Service'. The first respondent sought details from the appellant for a specific period, following which a penalty of Rs.28,26,220/- was imposed. The appellant filed a Writ Petition challenging this order, seeking its quashing.

2. The learned Single Judge considered the availability of an alternate remedy through an appeal before the Commissioner (Appeals) under Section 85 of the Finance Act. It was noted that there was no violation of principles of natural justice, and the Writ Petition was disposed of, allowing the statutory remedy to be pursued within a specified timeframe.

3. The appellant contended that the Single Judge failed to address the issue of natural justice violation and raised concerns about the inconvenience caused by the pre-condition of deposit for entertaining the appeal. However, the court observed that the statutory provision for appeal to the Commissioner of Central Excise (Appeals) under Section 85 of the Finance Act precluded the jurisdiction of the court to entertain the Writ Appeal under Article 226 of the Constitution of India.

4. Section 85 of the Finance Act provides the right to appeal against decisions or orders passed by adjudicating authorities. The court emphasized that statutory pre-conditions, such as deposit requirements for filing an appeal, cannot be circumvented. Therefore, the court concluded that there were no grounds to interfere with the judgment of the Single Judge and dismissed the Writ Appeal, affirming the statutory appeal process.