2024 (4) TMI 684 - HC - Service Tax

Maintainability of petition - availability of alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994 - marginal delay in filing the present Writ Petition - HELD THAT - Since the petitioner has an alternate remedy before the appellate Commissioner under Section 85 of the Finance Act, 1994, I am inclined to dispose of this Writ Petition by giving liberty to the petitioner to file statutory appeal before the appellate Commissioner within a period of 30 days from the date of receipt of a copy of this order subject to the petitioner depositing 20% of the disputed tax considering the delay involved. If such an appeal is filed by the petitioner within 30 days from the date of receipt of a copy of this order together with pre-deposit of 20% i.e., 10% over and above what is contemplated under Section 35-F of the Central Excise Act, 1944, the appeal shall be entertained and disposed by the Commissioner on merits and in accordance with law. Since the Deputy Commissioner of GST Central Excise, Madurai I Division, has been arrayed as the sole respondent in this Writ Petition, the Commissioner of CGST Central Excise, Madurai I Division, No.5, V.P. Rathinasamy Nadar Road, Bibikulam, Madurai 625 002, is suo motu impleaded as second respondent in the Writ Petition. Petition disposed off.

Summary

Issues involved: Challenge to impugned order u/s 85 of Finance Act, 1994; Alternate remedy before appellate Commissioner; Marginal delay in filing Writ Petition.

Summary:

The petitioner challenged the impugned order u/s 85 of the Finance Act, 1994, confirming the demand on the petitioner as per the show cause notice. The court noted a marginal delay in filing the Writ Petition due to the late receipt of the impugned order. Considering the alternate remedy available before the appellate Commissioner u/s 85 of the Finance Act, 1994, the court disposed of the Writ Petition by granting liberty to the petitioner to file a statutory appeal within 30 days from the date of receipt of the order, upon depositing 20% of the disputed tax. The appeal, if filed within the stipulated time and with the required pre-deposit, shall be entertained and decided by the Commissioner on merits and as per the law.

The Deputy Commissioner of GST & Central Excise was the sole respondent in the Writ Petition, and the Commissioner of CGST & Central Excise was suo motu impleaded as the second respondent. The court disposed of the Writ Petition with the given directions, without imposing any costs. The connected Miscellaneous Petition was also closed accordingly.