One Touch Medicals Products PVT. LTD. vs. The Commissioner Of Central G S T And Central Excise And Ors

Held

The Court held that the petitioner had a statutory remedy before the CESTAT against the order of the Commissioner (Appeals) dated 08.02.2018 (Annexure-12). The Court noted the Commissioner (Appeals)'s finding that the petitioner was served with a duly attested copy of the order dated 19.03.2014 and that the petitioner had not denied receiving it. Given the availability of this statutory remedy, the High Court declined to exercise its extraordinary writ jurisdiction. The Court did not delve into the merits of the petitioner's claim regarding non-service of the original order or the sufficiency of the attested copy for filing an appeal. The ratio decidendi is that High Courts should not entertain writ petitions when statutory remedies are available and have not been exhausted. The operative direction was to dismiss the writ application with liberty to the petitioner to avail statutory remedies.

Facts

The petitioner, One Touch Medicals Products Pvt. Ltd., filed a writ application challenging a notice dated 16.02.2018, issued by the Assistant Commissioner of Central GST & Central Excise, Vaishali Division, for recovery of CENVAT credit and penalty totaling Rs. 35,10,657/- for the period 2009-10. The petitioner contended that the original assessment order dated 19.03.2014 was never served upon them. They appealed to the Commissioner (Appeals), who noted that the department could not prove non-service of the order but also that an attested copy was served on 19.06.2017, making an appeal possible. The Commissioner (Appeals) ultimately found the appeal infructuous as the impugned recovery letter was cancelled and refused to direct the provision of a certified copy of the order-in-original, stating the attested copy was sufficient.

Key Issues

1. Whether the petitioner was adequately served with the order-in-original dated 19.03.2014, thereby entitling them to file an appeal against it within the stipulated period, as per Section 35H of the Central Excise Act, 1944? 2. Whether the Commissioner (Appeals) erred in dismissing the petitioner's appeal as infructuous and refusing to direct the provision of a certified copy of the order-in-original, despite the petitioner's claim of non-receipt? Petitioner's arguments: The petitioner argued that the non-service of the original order deprived them of their valuable right to appeal. They contended that an attested copy, as provided, was insufficient to allow for a timely appeal, especially considering the limitations on condoning delay under Section 35H of the Central Excise Act, 1944. Revenue's arguments: The revenue argued that the petitioner had received an attested copy of the order dated 19.03.2014, which was appealable. They further contended that if the petitioner was aggrieved by the Commissioner (Appeals)'s order, they had a statutory remedy before the CESTAT.