Putul Sarma vs. The Union Of INDIA And 3 Ors.

The instant writ petition has been filed challenging the Order-in-Original No. 62/Addl. Of Commr./ADJ/ ST/ COMMR/ DIB/2023-24 passed by the Additional Commissioner, Central Goods and Service Tax, Dibrugarh whereby an amount of Rs.97,20,191/- has been confirmed as the payable service tax under Section 73(2) of Finance Act, 1994 for the financial year 2017-18 (01.04.2017 to 30.06.2017). In addition to that the petitioner has also been imposed with interest and penalty as mentioned in the impugned order.

This Court further takes note of that the said order is appealable in terms with Section 107 of the CGST Act, 2017 to the Commissioner (Appeals), Customs, CGST and Central Excise (NER), GST Bhawan that to within 60 days from the date of the said impugned order being communicated.

The case of the petitioner as set out in the instant proceeding is that the Page No.# 3/5 herein under:- “23. It could thus be seen that, this Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mnind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the courts cannot be oblivious of the rules of self-imposed restraint

This Court also finds it relevant at this stage to take note of another judgment of the Supreme Court in the case of M/S Godrej Sara Lee Ltd. Vs Excise and Taxation Officer cum Assessing Authority and ors, reported in (2023) 109 GSTR 402 wherein the Supreme Court observed that a writ petition can be entertained inspite of availability of alternative remedy when (i) the writ petition seeks enforcement of any of the fundamental rights (ii) where there is a violation of the principles of natural justice (iii) where an order or the proceedings is wholly without juri iction (iv) where the vires of an Act is challenged. In addition to that, it was also observed that when an issue is raised purely on a question of law, the High Court can entertain a writ petition.

In the backdrop of the above, the question which arises is as to whether this Court should entertain the writ petition at all. In the instant case, the exceptional circumstances as stated in the Judgment of the Supreme Court in the case of M/S Godrej Sara Lee Ltd.(supra) is not present in as much as the question which has been raised by the petitioner is on the question of adjudication of facts as in respect to how much amount the concerned Assessing Authority ought to have taken into consideration and which Page No.# 5/5 transaction ought not to have been taken into consideration. These aspects in the opinion of this Court can be very well dealt with by the Statutory Appellate Authority. Under such circumstances, this Court finds no ground to entertain the instant writ petition, taking into account that there is an alternative and efficacious remedy available to the petitioner for which the instant writ petition stands dismissed.

Before parting with the record, this Court however takes note of the fact that the petitioner had approached this Court by filing the instant writ petition on 15.06.2024 and thereupon this Court had issued notice on 17.07.2024 and the writ petition had been pending since then.

Under such circumstances, this Court is of the opinion that the interest of justice would be met, if further 30 (thirty) days time is granted from today to the petitioner to file an Appeal before the Appellate Authority as mentioned in the impugned order dated 27.03.2024 itself. Accordingly, this Court observes and directs that if the petitioner herein files an Appeal within 30 (thirty) days from the date of the instant order, the Commissioner (Appeals) shall decide the appeal on merits without going into the question of limitation.

With the above observations and directions, the instant writ petition stands disposed of.