M/S Kumar Sanjay vs. The Union Of INDIA And Ors

Held

The Court held that the writ petitioner, having already availed of the statutory remedy by filing an appeal before the Commissioner (Appeals), cannot be permitted to pursue two forums on the same grounds. While acknowledging the petitioner's predicament, the Court refused to express an opinion on the merits of the case as it was pending before the Appellate Authority. The Court directed the Commissioner (Appeals) to consider the petitioner's appeal and dispose of it in accordance with law, affording an opportunity of hearing, preferably within three months. The Court also permitted the petitioner to make a fresh prayer for interim relief, which the Commissioner (Appeals) was directed to consider and dispose of within two weeks of filing. Crucially, the Court ordered that no coercive measures would be taken by the Department to enforce the demand until the disposal of the interim application.

Facts

The petitioner, M/s Kumar Sanjay, a proprietorship firm, is challenging an order dated 31.05.2018 passed by the Assistant Commissioner, Central GST & Central Excise, Begusarai Division. This order demanded a deposit of Rs. 14,01,860.00, comprising service tax, penalty, and interest recoverable under Section 87 of the Finance Act, 1994. The petitioner has filed a statutory appeal against this demand before the Commissioner (Appeals), respondent no. 3. The petitioner claims that a prayer for interim stay of the impugned demand before the Appellate Authority was not entertained, leading to the present writ petition. The revenue, represented by Mr. Alok Kumar Agarwal, disputes the petitioner's assertion regarding the non-entertainment of the interim relief prayer.

Key Issues

1. Whether the writ court should entertain a writ petition when a statutory appeal against the impugned order is pending before the appellate authority, and the petitioner has already availed of the statutory remedy. Petitioner's contention: The petitioner argues that the writ petition is maintainable because their interim prayer for stay before the Commissioner (Appeals) was not entertained, necessitating recourse to the High Court. Revenue's contention: The revenue contends that there is no record to show that the petitioner made any attempt to seek interim relief before the appellate authority. Furthermore, the revenue argues that the petitioner, having chosen the statutory remedy, cannot pursue two forums simultaneously for the same grounds.