Saru Kankani vs. Union Of INDIA And Ors.

Held

The Court held that the learned Single Bench was correct in refusing to entertain the writ petition. The reasoning was that the Order-in-Original dated February 22, 2023, was appealable before the Commissioner (Appeal-I), Kolkata, under Section 35 of the Central Excise Act, 1944, read with Section 84(1) of the Finance Act, 1944. The Court found no exceptional circumstances that would justify the appellant bypassing this statutory appellate remedy, which was considered both effective and efficacious. Therefore, the intra-Court appeal was dismissed. However, to provide relief, the Court directed that if the appellant files an appeal before the Appellate Authority within thirty days from the receipt of the server copy of the High Court's order, the authority shall entertain the appeal without rejecting it on the grounds of limitation and shall decide it on merits. The issue of whether the SVLDR Scheme application outcome was properly considered was implicitly left to be decided by the appellate authority.

Facts

The appellant, Saru Kankani, filed an intra-Court appeal challenging an order dated June 6, 2023, passed by the High Court in a writ petition. The original writ petition questioned an Order-in-Original dated February 22, 2023, issued by the Assistant Commissioner, CGST & CX, Burrabazar Division, Kolkata. The appellant contended that the outcome of their application under the Sabka Vishwas Legacy Dispute Resolution Scheme (SVLDR) 2019 was not disclosed, and this was the basis of their reply to a show cause notice. The Order-in-Original had recorded the authority's opinion on why the appellant's stand was unsustainable and proceeded to render findings on facts.

Key Issues

1. Whether the High Court was justified in refusing to entertain the writ petition filed by the appellant, considering the availability of an alternative statutory remedy? The appellant argued that the Order-in-Original was passed without considering the outcome of their SVLDR Scheme 2019 application, which was the core of their defense. They implicitly contended that the writ petition was maintainable due to the alleged failure of the authority to address this crucial aspect. The respondents (Union of India & Ors.) argued that the correctness of the Order-in-Original could be challenged by filing an appeal before the Commissioner (Appeal-I), Kolkata, as provided under Section 35 of the Central Excise Act, 1944, read with Section 84(1) of the Finance Act, 1944. They contended that this appellate remedy was effective and efficacious, and there were no exceptional circumstances to bypass it.