M/S Md Shamsher vs. Union Of INDIA Through The Secretary, Ministry Of Finance, Department Of Revenue

Held

The Court acknowledged that the demand orders in original are admittedly appealable. Instead of delving into the controversy of whether the orders were served, the Court decided to grant the petitioner an opportunity to appeal the two orders within 30 days from the date of the judgment. The Court directed the appellate authority to dispose of any such appeal(s) on their merits, without considering the issue of limitation, provided the appeals are filed within the stipulated 30-day period and the petitioner complies with all prescribed formalities, including pre-deposit, if any. All contentions of the parties on the merits of the case were left open for the appellate authority to decide. The writ petition was disposed of in these terms.

Facts

The petitioner, M/s Md. Shamsher, challenges two demand orders in original dated December 28, 2018, and October 20, 2020, concerning service tax and penalties. The petitioner claims these orders were never served, and they were directly issued recovery letters. The writ petition was filed in 2024. The respondents are the Union of India and various CGST & Cx. authorities in Dhanbad. The judgment notes that the orders under challenge are admittedly appealable. There is no affidavit on record regarding the service of these orders.

Key Issues

1. Whether the petitioner is entitled to maintain a writ petition challenging the demand orders in original, despite the existence of an alternative appellate remedy under the GST law? Petitioner's contention: The petitioner argues that a writ petition is maintainable because the demand orders were never served upon them, and they were only made aware of the demands through recovery letters. They contend that the appellate remedy is not effective if the orders themselves were not properly communicated. Respondents' contention: The respondents' counsel did not explicitly argue against the maintainability of the writ petition on the grounds of alternative remedy. However, the judgment notes that the orders are "admittedly appealable," implying the respondents would likely rely on this fact. The respondents did not file an affidavit regarding the service of the orders.