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TMI Blog2024 (5) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing of show cause notice by the High Court issued against the respondent under the Orissa Sales Tax Act and observed that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. The submission of learned counsel for the petitioner that the petitioner is not entering into the merits of the case vis- -vis challenge to the impugned order is belied by the averments of the writ petition itself which unambiguously enter into the merits of the case by highlighting the legal lacunae s in the order impugned. The writ petition is held to be not maintainable against the order impugned having been filed without availing the efficacious alternate remedy provided by the Act - the writ petition is dismissed. - HON BLE THE CHIEF JUSTICE N. KOTISWAR SINGH AND HON BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE For the Petitioners Through: Mr Sudhir Malhotra, Advocate Ms Snigdha Shekhar, Advocate Ms Kanika Malhotra, Advocate For the Respondent Through: Mr Rohan Nanda, CGSC ORDER PER 1. Petitioner, seeking quashment of Notification No. 21/2017 CE dated 18.07.2017 vide which Notification No. 1/2010 CE was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging the order impugned on merits, but is actually challenging the vires of notification No. 21/2017 CE dated 18.07.2017 vide which notification No. 01/2010 was rescinded well before due date of 30.09.2018 of filing application for fixation of actual rate of value addition. Learned counsel for the petitioner further submits that the order impugned has been passed by respondent no. 2 while relying upon the rescinded notification no. 1/2010. 6. On the other hand, the learned counsel for the respondents submits that the order impugned does not suffer from any legal infirmity. He submits that the petitioner has an alternate efficacious remedy against the order impugned and in view of availability of such efficacious remedy, the present petition is not maintainable. 7. The contention of the learned counsel for the petitioner that the present petition is filed only to challenge the vires of the notification does not inspire confidence, in that, the specific prayer made in the writ petition is in respect of the impugned order only seeking its quashment by a writ of certiorari. 8. The order passed by the Commissioner Central Excise/Central Goods Services Tax Commissionerate, Jammu (J K) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (b) or clause (c) or clause (d) where (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed [two lakh rupees]. [(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of Section 47 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under Section 35-EE as if such appeal or matter were an application or a matter arising out of an application made to it under that section.] [(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, [by order], constitute such Committees as may be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. [(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of, (a) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees; (b) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where the amount of duty and interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. (Emphasis supplied) 11. In yet another case titled CCT, Orissa and others v. Indian Explosives Ltd. (2008) 3 SCC 688, the Supreme Court took notice of the quashing of show cause notice by the High Court issued against the respondent under the Orissa Sales Tax Act and observed that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 12. The submission of learned counsel for the petitioner that the petitioner is not entering into the merits of the case vis- -vis challenge to the impugned order is belied by the averments of the writ petition itself which unambiguously enter into the merits of the case by highlighting the legal lacunae s in the order impugned. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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