2013 (10) TMI 1274 - HC - Service Tax

Invocation of Writ Jurisdiction - Held that - The order on merits can be examined and decided in the appellate proceedings - it is not proper and correct for the petitioner to bypass the appellate remedy, which is adequate and prescribed by law - Writ petitions are not meant to examine and correct errors and mistakes made in the original adjudication as an alternative forum - Writ proceedings are extraordinary in nature and are invoked in extraordinary circumstances - there is no dispute in respect of inherent or subject matter jurisdiction Decided against Petitioner. Reliance placed by the petitioner on Kamlakshi Finance Corporation Ltd. (1991 (9) TMI 72 - SUPREME COURT OF INDIA) is misconceived. It is noticed that in the said case the assessee therein had exercised the appellate remedy and thereafter the matter had reached the Supreme Court. In paragraph 6 of the said decision observations have been made that the adjudicating authorities are bound and should follow the appellate orders.

Summary

Issues:
- Consideration of judgments and circular in the impugned order
- Question of mala fides raised
- Bypassing appellate remedy
- Jurisdiction of writ petitions in tax matters
- Misconception regarding reliance on a specific case

Consideration of judgments and circular in the impugned order:
The petitioner argued that the impugned order on merits was incorrect as the judgments and circular mentioned in the defense submission were not given due consideration. The petitioner also highlighted the decision of the Supreme Court in Union of India Vs. Kamlakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC) to support their argument.

Question of mala fides raised:
The petitioner raised the question of mala fides in the case. However, the court emphasized that the statute itself provides for an appellate remedy, and the order on merits can be examined and decided in the appellate proceedings. It was deemed inappropriate for the petitioner to bypass the appellate remedy, which is adequate and prescribed by law.

Bypassing appellate remedy:
The court stressed the importance of invoking the appellate provisions and allowing the appellate authorities, who are experts in the subject matter, to decide all issues and contentions, including facts on merits. It was noted that errors or mistakes can be corrected in a just and fair manner through the appellate process, and writ petitions are not meant to correct alleged errors made in the original adjudication as an alternative forum.

Jurisdiction of writ petitions in tax matters:
In tax matters, the court explained that writ jurisdiction is typically invoked when there is an error related to the inherent or subject matter jurisdiction of the adjudicating authority. Since there was no dispute in the present case regarding inherent or subject matter jurisdiction, the court highlighted that writ jurisdiction should be reserved for extraordinary circumstances.

Misconception regarding reliance on a specific case:
The court addressed the petitioner's reliance on Kamlakshi Finance Corporation Ltd. (supra) and clarified that the case involved the exercise of appellate remedy by the assessee before reaching the Supreme Court. Observations were made in the decision emphasizing that adjudicating authorities are bound to follow appellate orders. The court dismissed the writ petition with these observations, indicating that the petitioner should pursue the appellate remedy available.