Keshab Sharma vs. Superintendent (Adjn) CGST And Cx, Barrackpore Division, Kolkata North Commissionerate And Ors.

Facts

The petitioner, Keshab Sharma, challenged a show-cause notice dated April 26, 2022, issued under the Service Tax Act, and the subsequent adjudication order dated December 22, 2023. The writ petition was filed on June 13, 2023, over two years after the show-cause notice. The petitioner argued that the show-cause notice was without jurisdiction in light of Section 174(2) of the CGST Act, 2017. The petitioner had participated in the proceedings that led to the adjudication order. The respondent CGST & CX authorities opposed the writ petition, arguing that the adjudication order was appellable and the petitioner should pursue the statutory appeal route rather than challenging the show-cause notice at this stage.

Held

The Court held that it was not inclined to entertain the writ petition and grant relief against the impugned adjudication order. The reasoning was based on the availability of an alternative statutory remedy by way of appeal and in view of the Division Bench judgments cited by the respondent. The Court noted that the petitioner had participated in the proceedings leading to the adjudication order, which itself was an appellable order. The Court acknowledged the petitioner's readiness to avail the statutory appellate remedy and, considering the request to condone the delay, granted liberty to the petitioner to file an appeal against the adjudication order within thirty days from the date of the order. The Court directed that all points raised in the writ petition would remain open and that the appellate authority should consider and dispose of the appeal on its merits without raising the point of limitation, provided the appeal was filed within the stipulated time. No specific issue was left undecided, as the Court directed the petitioner to pursue the statutory appeal.

Key Issues

1. Whether the writ court should entertain a challenge to a show-cause notice, which has culminated into an adjudication order, on grounds of jurisdiction, when an alternative statutory remedy of appeal is available (Section 174(2) of CGST Act, 2017). Petitioner's contention: The petitioner argued that the impugned show-cause notice was issued without jurisdiction, citing Section 174(2) of the CGST Act, 2017. They relied on an interim order from this Court in WPA No. 25886 of 2022 (Saikat Paul – vs – The Superintendent (ADJN), Central Tax, Shibpur Division, Howrah CGST commissionerate & Ors.). Respondent's contention: The respondent opposed the writ petition, contending that the adjudication order, which is appellable, should be challenged before the appropriate appellate authority. They argued that the appellate authority can re-examine factual positions and decide jurisdictional issues. The respondent relied on a Division Bench decision in FMA No. 1279 of 2022 (Md. Kalim Ansari – Vs – The Superintendent Range – II, Central Tax, Shibpur Division & Ors.) and MAT 692 of 2023 (Brinto Kumar Roy – Vs. Union of India & Ors.).