2024 (5) TMI 1148 - HC - Central Excise

Quashment of Notification No. 21/2017 CE dated 18.07.2017 vide which Notification No. 1/2010 CE was rescinded - fixation of special rate of actual value addition in respect of goods manufactured and cleared during the period April 2017 to 07.07.2017 - HELD THAT - The order passed by the Commissioner Central Excise/Central Goods Services Tax Commissionerate, Jammu (J K) is appealable, as admitted in the Writ Petition by the petitioner itself, before the CESTAT in terms of Section 35B of the Central Excise Act, 1944 - the remedy prescribed under the Act for any aggrieved person of the order of Commissioner, is an appeal before the CESTAT and without availing such remedy, the petitioner ought not to have rushed to this court with a writ petition. In yet another case titled CCT., ORISSA AND OTHERS VERSUS INDIAN EXPLOSIVES LTD. 2008 (2) TMI 607 - SUPREME COURT the Supreme Court took notice of the quashing of show cause notice by the High Court issued against the respondent under the Orissa Sales Tax Act and observed that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. The submission of learned counsel for the petitioner that the petitioner is not entering into the merits of the case vis- -vis challenge to the impugned order is belied by the averments of the writ petition itself which unambiguously enter into the merits of the case by highlighting the legal lacunae s in the order impugned. The writ petition is held to be not maintainable against the order impugned having been filed without availing the efficacious alternate remedy provided by the Act - the writ petition is dismissed.

Summary

Issues Involved:
1. Quashment of Notification No. 21/2017 CE.
2. Dismissal of the petitioner's application by the Commissioner, CGST Commissionerate Jammu.
3. Availability of alternate efficacious remedy.

Summary:

Issue 1: Quashment of Notification No. 21/2017 CE
The petitioner sought the quashment of Notification No. 21/2017 CE dated 18.07.2017, which rescinded Notification No. 1/2010 CE without saving operation regarding filing of applications for fixation of special rate of actual value addition for goods manufactured and cleared during April 2017 to 07.07.2017. The petitioner argued that the rescission occurred before the due date of 30.09.2018 for filing such applications.

Issue 2: Dismissal of Petitioner's Application
The petitioner's application for fixation of the special rate of actual value addition for the period April 2017 to June 2017 was dismissed by the Commissioner, CGST Commissionerate Jammu, on 03.05.2023, as time-barred. The petitioner sought a writ of mandamus to direct the respondent to allow the benefit of the special rate for the specified period by considering the application dated 08.02.2023.

Issue 3: Availability of Alternate Efficacious Remedy
The court noted that the petitioner admitted in the writ petition that the order by the Commissioner, CGST Commissionerate Jammu, is appealable before the CESTAT u/s 35B of the Central Excise Act, 1944. The court emphasized that alternate efficacious remedies should not be bypassed, citing precedents from the Supreme Court, including Punjab National Bank v. O.C. Krishnan and others and CCT, Orissa v. Indian Explosives Ltd., which highlighted the importance of exhausting alternative remedies before approaching the court.

Conclusion:
The court found the writ petition not maintainable as the petitioner did not avail the alternate efficacious remedy provided by the Act. The petition was dismissed with no order as to costs.