HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION No.14477 OF 2014
DATED: 21.11.2014 Between:
ABC Engineering Works … Petitioner And The Assistant Commissioner of Customs and Central Excise and others … Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.14477 of 2014
ORDER: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta)
This Writ Petition has been filed challenging demand notice dated 29.04.2014 on the ground precisely that it was issued without disposing of the modification application sent on 13.02.2014 and received by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) of South Zonal Bench, Bangalore on 20.02.2014 and consequently, to set aside the same.
The fact relevant to this matter is as follows:
The petitioner before us is an assessee and it was issued with show cause notice dated 30.08.2006 demanding Rs.7,05,07,328/- towards service tax. After adjudication, the Commissioner passed order dated 27.05.2008 confirming the demand apart from interest under Section 75 and penalty under Section 76 of the Finance Act, 1994. This order of Commissioner was taken to appeal before the aforesaid CESTAT. An application for waiver of the deposit was also made. CESTAT by order, dated 25.02.2010, allowed the appeal, set aside the order of adjudication and remanded the matter for fresh adjudication. Thereafter, fresh adjudication was done by the Commissioner by passing an order dated 21.09.2011. Against this order, an appeal has been preferred before CESTAT again and in the appeal preferred for the second time, an application for waiver of pre-deposit was made. On that application, the learned Tribunal passed an order on 10.01.2014 asking the appellant to remit the penalty amount due under Section 76 of the Finance Act, 1994 as assessed in the fresh adjudication order within six weeks and to report compliance by 17.02.2014.
On 17.02.2014, the matter came up before CESTAT to file compliance report. On that date, CESTAT having found non-compliance, dismissed the appeal by a subsequent order, dated 17.02.2014. In view of dismissal of the appeal, the adjudication has reached to its finality. Consequently, demand notice was challenged in the Writ Petition.
Now, question of maintainability of the Writ Petition has arisen that the appeal itself stood dismissed on 17.02.2014. Against this order, statute provides for an appeal. According to us, the Writ Petition should not be filed in view of alternative remedy. However, the learned counsel for the petitioner says that in the first order of the learned Tribunal dated 10.01.2014, six weeks’ time was given for compliance. If six weeks time is calculated, last date of compliance would be 21.02.2014. However, the learned Tribunal has asked the petitioner to report compliance by 17.02.2014. We think this contention deserves attention of this Court only when the Writ Petition is required to be heard. According to us, there is no illegality or infirmity in the demand notice since there is no fetter under the law. Basically, in substance, the order of dismissal of the appeal is still valid and subsisting. We hold that the Writ Petition is not maintainable in view of alternative remedy as observed earlier.
We accordingly dismiss the Writ Petition. The interim order passed by this Court earlier stands vacated. However, this order of dismissal would not prevent the petitioner from approaching appropriate forum in accordance with law, as may be advised. No order as to costs.
Consequently, miscellaneous petitions, if any pending, shall stand closed.
21st NOVEMBER, 2014.
K.J. SENGUPTA, CJ SANJAY KUMAR, J kvni