Sri Mohammed Kani Razak vs. The Deputy Commissioner Of CGST And Central Excise

Facts

The petitioner, a PWD Contractor, filed a writ petition challenging an assessment order dated 08.03.2022, passed by the Deputy Commissioner of CGST and Central Excise. The order imposed service tax and penalty for the period from 01.04.2015 to 30.06.2017. The petitioner contended that the services provided to the Government were exempted under Notification No. 25/2012, which was later withdrawn by Notification No. 6/2015-Service Tax effective from 01.04.2015. The petitioner had replied to the show cause notice dated 28.04.2021 but alleged that the assessment order was passed without granting a personal hearing. The respondents argued that the petitioner had an alternative remedy of appeal under Section 85 of the Finance Act.

Held

The Court disposed of the writ petition by granting liberty to the petitioner to file an appeal before the Appellate Authority. The Appellate Authority was directed to entertain the appeal within a period of two weeks from the date of receipt of a copy of the order, without insisting on the limitation period. The Court did not delve into the merits of the petitioner's claim regarding the exemption or the denial of personal hearing, implicitly acknowledging the availability of an alternative remedy. The reasoning appears to be based on the principle that where an alternative statutory remedy exists, it should generally be availed, especially when the High Court has previously permitted such a course of action in similar circumstances, even if it involves condoning the delay. The ratio decidendi is that a writ petition may be disposed of by directing the petitioner to avail the statutory appellate remedy, with a direction to the appellate authority to consider the appeal without demur on the ground of limitation, in line with previous judicial pronouncements.

Key Issues

1. Whether the impugned assessment order dated 08.03.2022, passed by the Deputy Commissioner of CGST and Central Excise, is liable to be quashed on the grounds of illegality and lack of merit? (Mixed question of law and fact) 2. Whether the petitioner was denied a personal hearing before the passing of the assessment order? (Question of fact) Petitioner's Contentions: The petitioner argued that the services rendered were exempted under Notification No. 25/2012 and that the assessment order was passed without providing a personal hearing, making it illegal. They relied on the fact that they had submitted a reply to the show cause notice. Respondents' Contentions: The respondents contended that the petitioner had an alternative appellate remedy under Section 85 of the Finance Act and that the appeal should be filed within the prescribed limitation period. They cited a previous High Court order in W.P.No.13687 of 2023, where liberty was granted to file an appeal without insisting on the limitation period.