9911796707
TMI Blog2015 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... fore attained finality. In such an event, when consequential orders are passed by the Assessing Authority, pursuant to the directions in the appellate order, I do not think that the power of the Deputy Commissioner under Section 35 of the KGST Act can be invoked to modify or vary the consequential orders passed by the Assessing Authority pursuant to the appellate order of the Appellate Authority. To permit the 2nd respondent to do so would tantamount to ignoring the order of the appellate authority that had already attained finality. The action of the 2nd respondent in invoking the provisions of Section 35 of the KGST Act to modify Exts.P12 to P16 orders of the 1st respondent are therefore wholly without jurisdiction and are necessarily to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority had, while passing the appellate order, not taken into account the excise duty component of the turnover for the purposes of computing the tax liability of the petitioner, proceeded to issue Exts.P17 to P21 notices dated 18.9.2010 proposing to set aside Exts.P12 to P16 consequential orders of the 1st respondent. In other words, the 2nd respondent, through Exts.P17 to P21 notices, sought to invoke the provisions of Section 35 of the KGST Act so as to set aside the consequential orders passed by the 1st respondent pursuant to Ext.P11 appellate order of the Deputy Commissioner (Appeals). It is relevant to note that, while issuing Exts.P17 to P21 notices, Ext.P11 appellate order itself was never challenged and the same had already attaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of said assessment orders it was found that the excise duty element was not assessed to tax. Hence the 2nd respondent rightly issued Exhibit P17 to P21 notices under Section 35 (2A) of the KGST Act and after considering the objection filed by the petitioner passed Exhibit P23 to P27 orders. 4. It is submitted that Exhibit P23 to P27 orders are passed strictly in accordance with the provisions of the KGST Act. While passing Exhibit P11 appellate order, the appellate authority has not considered the question with regard to the liability of tax on the elements of excise duty. As per Section 35 (2A) of the KGST Act the Deputy Commissioner has powers to pass order under Section 35 (1) of the KGST Act on any point which has not been decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expiry of the period of four years referred to in Clause (c) of the Sub-section, whichever is later. A reading of the said provision clearly indicate that the suo motu power of revision available to the Deputy Commissioner is one that has to be exercised in respect of an assessment order. If the said order has been carried in appeal before the Appellate Authority, then, by virtue of clause (2A) of Section 35, the Deputy Commissioner can still proceed against the assessment order to the extent it concerns those issues which have not been carried in an appeal against the said order. In either event, the power of the Deputy Commissioner is only to proceed against the original assessment order. The learned Government Pleader would in this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent are therefore wholly without jurisdiction and are necessarily to be set aside. 6. At this stage, I must take note of the submissions made by the learned Government Pleader that the petitioner has an effective alternate remedy under the KGST Act to challenge Exts.P23 to P27 orders and hence this court should not interfere with the said order in proceedings under Article 226 of the Constitution of India. I do not find any merit in the said contention. It is trite that when an authority under a Statute acts contrary to the express provisions of the statute or in excess of the jurisdiction vested in him under the statute, the plea of an alternate remedy under the Statute will not deter this court from entertaining a writ petition un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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