Chandra Shekhar Bhtevra vs. Union Of INDIA

Held

The Court held that the writ petition is not maintainable. While acknowledging the petitioner's contentions regarding violation of natural justice and limitation, the Court noted that the order impugned is appealable under Section 85 of the Finance Act, 1994, and the petitioner has already preferred an appeal before the Appellate Authority, which is pending. The Court reiterated the settled law that the right to appeal is a statutory creation and can be circumscribed by conditions. The Court specifically addressed the pre-deposit requirement, stating that the proviso to Section 48(1) of the Act only mandates the deposit of 7.5% of the demand, not the entire amount. Therefore, this condition cannot be considered onerous. The Court distinguished the case of Smt. Kiran Kanwar, finding it clearly distinguishable from the present facts. Consequently, the Court found no reason to permit the petitioner to bypass the statutory remedy of appeal by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition was dismissed in limine.

Facts

The petitioner, Chandra Shekhar Bhtevra, is challenging an order dated March 31, 2017, passed by the Assistant Commissioner, Central Excise & Service Tax, Division Chittorgarh. This order created a service tax liability of Rs. 17,95,516/- against the petitioner for the assessment years 2010-11, 2011-12, 2012-13, 2013-14, and 2014-15. The petitioner claims the order was passed without an opportunity of hearing and is beyond the period of limitation, rendering it without jurisdiction. The petitioner only became aware of the demand upon service of a demand notice. The petitioner also points to the Assessing Authority's subsequent notice dated March 9, 2018, requesting financial documents, as evidence of arbitrary action. The petitioner has filed a writ petition before the High Court, arguing that the statutory appeal remedy is onerous due to the pre-deposit requirement.

Key Issues

1. Whether the writ petition is maintainable against an order passed in violation of the principles of natural justice, notwithstanding the availability of a statutory appeal remedy under Section 85 of the Finance Act, 1994? Petitioner's Arguments: The petitioner contends that the order impugned was passed without affording an opportunity of hearing, thus violating principles of natural justice. The petitioner argues that the order is also beyond the period of limitation and therefore without jurisdiction. The petitioner further submits that the subsequent requisition for financial documents by the Assessing Authority, after creating the demand, demonstrates arbitrary action. The petitioner relies on the decision in Smt. Kiran Kanwar vs. Union of India to support the maintainability of the writ petition. Additionally, the petitioner argues that the statutory appeal remedy is onerous because it requires a pre-deposit of 7.5% of the demand. Revenue's Arguments: The revenue has not recorded any specific arguments in the judgment.