Avail alternative remedy of statutory appeal before filing Writ petition in High Court : HC

By | November 30, 2018
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(Last Updated On: November 30, 2018)

once the petitioner has got efficacious alternative remedy of statutory appeal, the same ought to have been availed by it before invoking the writ jurisdiction of this Court.

HIGH COURT OF HIMACHAL PRADESH

Austees Hydro Power & Construction Co. (P.) Ltd.

v.

Union of India

SURYA KANT, CJ
AND AJAY MOHAN GOEL, J.

CWP NO. 1073 OF 2018

OCTOBER  25, 2018

Ajay Vaidya, Advocate for the Petitioner. Rajesh Sharma, Assistant Solicitor General of India, Rajiv Jiwan, Advocate, and Prashant Sharma, Advocate for the Respondent.

JUDGMENT

Justice Surya Kant, CJ. — The petitioner-Company is aggrieved by the order dated 28th March, 2018 (Annexure P-3) passed by Joint Commissioner, Central Goods & Services Tax Commissionerate, Shimla. Vide the said order, the demand of services tax amounting to Rs. 1,90,84,482/- has been confirmed and the demand of interest at the applicable rate on the above stated amount of services tax has also been confirmed. Similarly, the demand of penalty of Rs. 10,000/- under Section 77(1)(a) read with Section 142(8)(a) and 174(2) of Central Goods & Services Tax Act, 2017 has also been confirmed. Likewise, a further penalty of Rs. 1,90,84,482/- i.e., equivalent to services tax too has been levied.

2. The respondents have filed their reply-affidavit justifying the impugned order and have taken a preliminary objection that the impugned order is appealable under Section 85 of the Finance Act, 1994. In fact, the forwarding letter attached with the impugned order itself recites that if either party is aggrieved of the impugned order, it may file an appeal within 60 days and “an appeal against this order shall lie before the Commissioner (Appeal) on payment of 7.5% of the duty demanded where duty or duty and penalty are in dispute or penalty, where penalty alone is in dispute.”

3. In our considered view, once the petitioner has got efficacious alternative remedy of statutory appeal, the same ought to have been availed by it before invoking the writ jurisdiction of this Court.

4. The writ petition is accordingly disposed of by relegating the petitioner to avail the alternative remedy of appeal under Section 85 of the Finance Act, 1994.

5. Since during the pendency of this writ petition, the time limit to file the appeal has expired, it appears that the prayer of the petitioner for condonation of delay in filing the appeal deserves acceptance. Consequently, we direct the Appellate Authority that in case the petitioner files an appeal within a period of two weeks from today, the delay in filing the appeal may be condoned and the appeal may be decided on merit and in accordance with law. The interim order passed by this Court on 16.5.2018 shall continue to operate for a period of four weeks to enable the petitioner in the meanwhile to seek interim relief before the Appellate Forum.

6. As regards to the condition of pre-deposit, it appears to us that it would meet the ends of justice, if the petitioner is asked to make such pre-deposit in respect of the liabilities other than the penalty equivalent to the amount of services tax. Consequently, the Appellate Authority shall, on making pre-deposit by the petitioner at the prescribed rate qua the services tax, interest or penalty of Rs. 10,0000/-, i.e., other than the penalty equivalent to the services tax, shall decide the appeal on merits.

The petition stands disposed of in the above terms, so also pending miscellaneous application(s), if any.

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