Suthahar.T vs. The Commissioner

Facts

The petitioner, T. Suthahar, filed a writ petition challenging an Order-in-Original dated 30.11.2021 passed by the Joint Commissioner, CGST & Central Excise, Madurai. This order was a de novo proceeding after a previous order dated 28.02.2021 was quashed by the High Court on 01.04.2021, remitting the case back. The petitioner contended that the de novo order granted partial relief despite the availability of benefit under Notification No.9/2016-Service Tax. The disputed tax amount was Rs.44,51,915/-. The petitioner was required to pre-deposit 7.5% of the disputed tax/penalty. The writ petition was filed to avoid this pre-deposit. The petitioner did not appear before the High Court. The respondents were represented by Mr. S. Gurumoorthy.

Held

The Court held that the writ petition should be dismissed. The reasoning was based on the presence of several disputed questions of fact. The Court emphasized that the petitioner has the option to pursue the statutory appellate remedies available under the Finance Act, 1994, which includes approaching the appellate Commissioner, then the Tribunal, and thereafter the High Court in its appellate jurisdiction or the Supreme Court. The Court noted that the writ petition was filed to avoid the pre-deposit requirement of 7.5% of the disputed tax. Therefore, the Court directed the petitioner to file a statutory appeal before the appellate Commissioner within 30 days of receiving the order, subject to making the required pre-deposit as contemplated under Section 35 of the Central Excise Act, 1944. If such an appeal is filed, the appellate Commissioner is directed to entertain it and dispose of it on merits. No issue was expressly left undecided.

Key Issues

1. Whether the High Court, in its writ jurisdiction under Article 226 of the Constitution, should entertain a challenge to an Order-in-Original when there are disputed questions of fact and statutory appellate remedies are available, particularly when the petitioner seeks to avoid pre-deposit requirements? (Mixed question of law and fact, turning on the principles of writ jurisdiction and availability of alternative remedies). Contentions: Petitioner: Not recorded as no appearance was made. Respondents: The judgment does not explicitly record arguments from the respondents. However, the court's reasoning implies that the existence of disputed questions of fact and the availability of statutory appeal mechanisms were considered. The court noted that the writ petition was filed to avoid pre-deposit, suggesting a potential argument against entertaining the writ.