2019 (6) TMI 1072 - HC - Service Tax

Maintainability of petition - demand of service tax and levy of penalty - alternative efficacious remedy - Section 37(C) of the Central Excise Act, 1944 - HELD THAT - We are not impressed by the submission of the learned counsel that this petition may be entertained without asking the writ applicant to avail the alternative remedy of preferring an appeal before the Appellate Tribunal. We are not going into the issue whether the grievance redressed by the writ-applicant as regards non-supply of the documents is genuine or not. Let this argument be canvassed before the Appellate Tribunal. We leave it for the Appellate Tribunal to consider such argument, if at all the writ-applicant deem fit to prefer an appeal before the Tribunal. Writ-application disposed off without expressing any opinion on merits only on the ground that the petitioner has an alternative efficacious remedy of preferring an appeal under Section 86 as referred to above before the Appellate Tribunal.

Issues Involved:
1. Quashing and setting aside the impugned order.
2. Stay on the operation and implementation of the impugned order.
3. Direction to provide annexures and documents referred to in the show cause notice.
4. Alternative remedy of preferring an appeal before the Appellate Tribunal.

Detailed Analysis:

1. Quashing and Setting Aside the Impugned Order:
The petitioner sought to quash and set aside the impugned order No. KCH-EXCUS-000-COM-16-2018-19 dated 25/01/2019 issued by the Commissioner of Central Goods and Service Tax, Kutch Commissionerate, Gandhidham-Kutch. The order confirmed a total Service Tax demand of ?30,32,35,954/- and other related penalties and interest under various sections of the Finance Act, 1994. The petitioner argued that the impugned order should be set aside as it was passed without considering their defense due to non-supply of necessary documents.

2. Stay on the Operation and Implementation of the Impugned Order:
The petitioner also sought a stay on the operation and implementation of the impugned order pending the hearing and final disposal of the petition. The petitioner contended that the impugned order was violative of the principles of natural justice as they were not provided with the documents referred to in the show cause notice, which hindered their ability to file an appropriate reply.

3. Direction to Provide Annexures and Documents Referred to in the Show Cause Notice:
The petitioner requested the court to direct the respondent authorities to provide the annexures and other documents mentioned in the show cause notice dated 10/1/2018. The petitioner argued that without these documents, they could not effectively contest the show cause notice. The court noted that the Commissioner had observed that the annexures were supplied with the show cause notice and that the petitioner’s request for these documents at a belated stage was untenable.

4. Alternative Remedy of Preferring an Appeal Before the Appellate Tribunal:
The court highlighted that the petitioner had an alternative efficacious remedy in the form of a statutory appeal provided under Section 86 of the Service Tax before the Appellate Tribunal. The court pointed out that the petitioner could raise the issue of non-supply of documents before the Appellate Tribunal. The court was not convinced by the petitioner’s argument to bypass the alternative remedy and entertained the writ application. The court decided to dispose of the writ application without expressing any opinion on the merits, emphasizing the availability of the alternative remedy of preferring an appeal under Section 86 before the Appellate Tribunal.

Conclusion:
The court dismissed the writ application, directing the petitioner to avail the alternative remedy of preferring an appeal before the Appellate Tribunal under Section 86 of the Service Tax. The court did not delve into the merits of the petitioner’s grievances regarding the non-supply of documents, leaving it to the Appellate Tribunal to consider such arguments if the petitioner chose to appeal.

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