Sujit Kumar Gauand vs. Superintendent Of CGST And Cx, Range - Ii, Dankuni Division Howrah CGST Commissionerate And Ors.

Held

The Court held that the writ petition was not maintainable. On the first issue, regarding the availability of an alternative remedy, the Court found that the grounds raised involved mixed questions of fact and law, which could be effectively adjudicated by the appellate tribunal. The Court relied on the Division Bench decision in Haldia Nirman Projects Private Limited, stating that the tribunal's power under Section 35B is wide enough to re-examine factual positions, and an appellant should not bypass such an effective remedy. On the second issue, concerning the barred remedy, the Court held that the writ petition was filed after the expiry of the statutory period of limitation for appeal. Citing Cal. Electric Supply Corpn. Ltd. & Anr. vs. Kalavanti Doshi Trust & Ors., the Court affirmed the settled law that a writ court should not revive a barred remedy under Article 226 of the Constitution. The Court found the impugned order to be well-reasoned, not contrary to any specific provision of law, and not in violation of principles of natural justice or procedural irregularity. The Court considered the recent Division Bench decision binding and dismissed the writ petition.

Facts

The petitioner, Sujit Kumar Gauand, filed a writ petition challenging an order in original dated February 10, 2023, passed by the respondent Service Tax Authority. The writ petition was filed on August 10, 2023, which was more than six months after the impugned order and after the expiry of the statutory period for filing an appeal. The respondent CGST Authority opposed the writ petition on the grounds that an efficacious alternative remedy by way of statutory appeal was available and that the petitioner had approached the writ court after the remedy had become barred by limitation. The respondent relied on two Division Bench decisions of the High Court.

Key Issues

1. Whether the writ petition is maintainable when an efficacious alternative remedy by way of statutory appeal is available to the petitioner, as per Section 35B of the relevant Act? 2. Whether the writ petition is maintainable when it has been filed after the expiry of the statutory period of limitation for filing an appeal, thereby rendering the remedy barred, and whether a writ court can revive a barred remedy? Contentions of the Petitioner: The petitioner relied on an earlier unreported Division Bench decision of the High Court in M/s. Kesoram Spun Pipes and Foundries Ltd. vs. Commissioner of Central Excise & Ors. to argue that a writ petition is maintainable for challenging the invoking of the extended period of limitation by the Authority under Section 73 of the Finance Act, 1994. Contentions of the Respondent (CGST Authority): The respondent argued that the grounds canvassed were mixed questions of fact and law, not pure questions of law, and thus not suitable for adjudication in a writ petition, citing Haldia Nirman Projects Private Limited and Another vs. The Additional Director General, Directorate General of Goods and Services Tax Intelligence, Kolkata Zonal Unit and Ors. They further contended that the Tribunal's power under Section 35B of the Act is wide enough to re-examine factual positions. The respondent also argued, citing Cal. Electric Supply Corpn. Ltd. & Anr. vs. Kalavanti Doshi Trust & Ors., that a writ court should not revive a remedy that is barred by limitation, referencing the Supreme Court's decision in Chattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors.