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TMI Blog2018 (12) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed up that for preventing public injury and for vindicating public justice a suitor may need constitutional remedies - the Court must have good and sufficient reason to bypass the alternative remedy provided by the statute. Surely matters involving the revenue where statutory remedies are available are not such matters. Is the statutory adjudicatory mechanism under the Finance Act 1994 ill-suited to resolve the disputes the writ petitions have raised? - Held that:- Section 66D contains the “negative list of services”. Among them found are a few services by the Government or a local authority. The petitioner claims that the transmission and distribution of electricity by any of its utilities is exempted under Section 66D(k) of the Act. In addition, it claims that its purchasing the materials used for transmission activities is purely sale and purchase stands exempted under Section 66D(e) of the Act. Examined further, the petitioner Board also pleads that the inspection and testing fee it collects is a part of transmission and distribution of electric energy. So it is not based on any special contract. By that reckoning, the inspection and testing fee, the Board asserts, will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question the assessment orders at various stages. In W.P.(C) No.11302 of 2018, the Deputy Chief Engineer of the Kerala State Electricity Board Limited ( the Electricity Board ) questions the Ext.P3 assessment order. That order imposes Service Tax on one unit of the Electricity Board. In W.P. (C) No.6 of 2018, the petitioner assails the penalty under Section 12 (a b) of the Customs Act. In W.P. (C) No.24129 of 2018, the petitioner, a Co-operative Society, suffered the Ext.P1 assessment order and filed the Ext.P2 appeal before the Commissioner of Appeals. But, through the Ext.P3, the Appellate authority rejected the appeal on the grounds of limitation. Though each writ petition raises a distinct issue, they have all been taken up together because the Revenue has taken one consistent stand: These petitioners have an efficacious alternative remedy. 3. Given the preliminary objection the Revenue has raised, I will confine myself to only that question of alternative remedy. And I refer to the facts to the extent relevant to decide this preliminary issue. 4. As W.P. (C) No.11302/2018 was argued extensively, I first refer to the facts of that case and then decide, what I essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. City Industrial Development Corpn. ( 2007) 9 SCC 593, M.P.State Agro Industries Development Corpn. Ltd. v. Jahan Khan (2007) 10 SCC 88, Godrej Sara Lee Ltd. v. Assistant Commissioner (AA) (2009) 14 SCC 338 and Madras Bas Association v. Union of India (2014) 10 SCC 1. 8. To sum up his submissions, the learned Senior Counsel has strenuously contended that the Electricity Board has 52 units. All have registrations under Service Tax Act as individual entities. As the activities are common for all those units, if the Revenue subjects them to assessment, each adverse order needs to be challenged before the statutory authorities. And for the Electricity Board, it is a challenge one too many; it must go to the appellate authority multiple times. According to him, it is a matter of duplication of proceedings, both repetitive and expensive, affecting the public exchequer. 9. In other words, the learned Senior Counsel underlines that the public interest is paramount even in, say, a question of alternative remedy. In the end, the learned Senior Counsel has associated that the first appellate authority or even the Tribunal is illequipped to decide the jurisdictional issues and also l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Then he has drawn my attention to Section 85 of the Finance Act, to hold that if at all an assessee wanted to take recourse to departmental remedies, it ought to have approached the Commissioner of Appeals in two months from the date of the Ext.P3 and with delay by another two months-from the date of its receiving the proceedings. According to him, if this Court were to hold that the petitioner had an efficacious alternative remedy, a public utility concern would suffer irreparable hardship because of the rigid time line fixed under Section 85. In the end, the learned Senior Counsel has underlined the importance of a public utility and the adverse impact of hyper technical view on the issue of alternative remedy. 16. Heard Sri Raju Joseph, the learned Senior Counsel for the petitioner, and Sri Hari Shankar R, the learned Standing Counsel for the respondents. Discussion: Alternative Remedy - Sisyphean Burden: 17. To begin with, I must acknowledge that both the learned counsel, while sustaining their respective pleas on the alternative remedy, have incidentally trenched upon the merits, as it was inevitable. Those references, I reckon, only provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. ( iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. ( italics supplied) 21. Whirlpool Corporation, to begin with, after considering many decisions on the issue, observes that much water has since flowed beneath the judicial bridges, but there has been no corrosive effect on these decisions which though old, continue to hold the field. The jurisdiction of the High Court under Article 226 of the Constitution, despite the alternative statutory remedies, remains unaffected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. Popcorn Entertainment, in fact, reiterates Whirlpool Corporation. 22. In Jahan Khan, the Supreme Court has held that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution because of the alternative remedy. But the rule of alternati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court under different statutory provisions stand transferred to a Tribunal. So it is not a question of alternative remedy, but that of a substituted adjudicatory authority. A Constitution Bench has held that the High Court s adjudicatory powers can definitely be transferred to other courts/tribunals, subject to the satisfaction of norms declared by Supreme Court. Then, the Constitution Bench posed unto itself a question: Has the National Tax Tribunal Act transferred any power vested in courts by the Constitution? The answer is in the negative. 26. Madras Bar Association has observed that the power of judicial review vested in the High Court under articles 226 and 227 of the Constitution has remained intact. Therefore, it must never be overlooked, that since the power of judicial review exercised by the High Court under articles 226 and 227 of the Constitution has remained unaltered, the power vested in High Courts to exercise judicial superintendence over the benches of the NTT within their respective jurisdiction has been consciously preserved. I do not, however, think that Madras Bar Association has anything to do with the principle of alternative remedy. 27. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal. The Act, thus, provides for a complete machinery to challenge an order of assessment and the impugned orders of 12 74 I.A. 50 (as quoted in Titaghur Paper Mills) assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. 31. In another case, a municipality charged a graduated consolidated rate on the annual value of the holdings in terms of the amended Sections 123 and 124 of the Bengal Municipal Act, 1932. The respondent filed a writ petition and had the recovery stayed. The municipality took the matter to the Supreme Court. 32. In Siliguri Municipality, the Supreme Court was dismayed at the tendency on the part of some of the High Courts to grant interlocutory orders for the mere asking. Normally, the High Courts should not, as a rule, in proceedings under Article 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempted under Section 66D(e) of the Act. Examined further, the petitioner Board also pleads that the inspection and testing fee it collects is a part of transmission and distribution of electric energy. So it is not based on any special contract. By that reckoning, the inspection and testing fee, the Board asserts, will not fall within the mischief of Section 66E(e) of the Act. 36. The next defence the Board raised is the limitation. Section 73 deals with how the Revenue should recover service tax not levied, or paid, or short-levied, or short-paid, or erroneously refunded. It should serve a notice on the assessee within eighteen months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. 37. First, we will consider the Electricity Board s contention on limitation. As is well known, the limitation is a mixed question of fact and of law. Summary adjudication under Article 226 of the Constitution is hardly suited to resolve that dispute. Second, let us consider whether a statutory body can resolve, as the Electricity Board puts it, intricate interpretative issues. Indeed, the Board has laid much emphasis on Whirlpool Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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