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2021 (3) TMI 33 - HC - Service TaxMaintainability of petition - availability of alternative remedy of appeal - impugned order has been passed, without giving proper reasons, without dealing with the submissions of the petitioner and applying Rule 6A of the Service Tax Rules, 1994 which was not even in force at the relevant time - HELD THAT - The appellate provision cannot be obviated for such reasons. Though the senior counsel for the petitioner, relying on EAST INDIA COMMERCIAL CO. LTD., CALCUTTA VERSUS COLLECTOR OF CUSTOMS, CALCUTTA 1962 (5) TMI 23 - SUPREME COURT has contended that writ petition is maintainable when the judgment of the Supreme Court has been ignored, but we are still of the opinion that if at all the petitioner, after availing of the remedy of appeal, is not in a position to comply with the mandatory requirement of pre-deposit and/or has any other ground for waiver thereof, the remedy of the petitioner is to apply at that stage under Article 226 of the Constitution of India, making averments in that regard and writ petitions cannot be entertained negating the statutory remedy of appeal provided. This writ petition is rejected with liberty to the petitioner to avail of the remedy of appeal and of the remedy if any, if entitled, as aforesaid qua the pre-deposit - petition dismissed.
Issues:
Challenge to order of Principal Commissioner of Central Goods and Service Tax without proper reasons and non-compliance with Rule 6A of Service Tax Rules, 1994; Availability of remedy of appeal to Customs, Excise and Service Tax Appellate Tribunal (CESTAT) with mandatory deposit requirement under Section 35F of Central Excise Act, 1944; Maintainability of writ petition when statutory remedy of appeal is available. Analysis: The petition challenged the order of the Principal Commissioner of Central Goods and Service Tax, Delhi, South Commissionerate, dated 27th October, 2020, alleging lack of proper reasoning and failure to address the petitioner's submissions while applying Rule 6A of the Service Tax Rules, 1994 retroactively. The senior counsel argued that the remedy of appeal to CESTAT was available but highlighted the impracticality of complying with the mandatory 7.5% deposit requirement under Section 35F of the Central Excise Act, 1944 due to the substantial demand. The respondents' counsel contended that the grounds of challenge could be raised in an appeal and noted the absence of any mention in the petition regarding the petitioner's inability to meet the pre-deposit requirement for appeal. The court acknowledged the availability of the appellate remedy and emphasized that such provisions should not be circumvented on grounds of inability to comply with pre-deposit requirements. Despite the petitioner's reliance on legal precedent, the court maintained that if the petitioner faced challenges in meeting the mandatory deposit or had other grounds for waiver, those issues should be addressed during the appeal process. The court highlighted that writ petitions should not bypass statutory appeal remedies, and if the petitioner encountered difficulties post-appeal, they could seek relief under Article 226 of the Constitution of India. The court noted that the statutory appeal's limitation period had not lapsed, leading to the rejection of the writ petition with liberty for the petitioner to pursue the appeal remedy and address any entitlement to waiver of the pre-deposit requirement. In conclusion, the writ petition was dismissed, emphasizing the importance of adhering to statutory appeal procedures and reserving the right for the petitioner to explore remedies during the appeal process if faced with challenges such as the mandatory deposit requirement.
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