M/S.Hi-Tech Arai PVT LTD. vs. The Assistant Commissioner Of

Facts

The petitioner, M/s. Hi Tech Arai Pvt Ltd., filed a writ petition challenging an order dated September 30, 2020, passed by the Assistant Commissioner of Central Goods and Service Tax and Central Excise. This was the second round of litigation concerning a demand confirmed earlier. The petitioner had appealed to the Appellate Commissioner and then to the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The CESTAT, by an order dated February 21, 2020, remanded the case back to the adjudicating authority for fresh consideration, directing it to examine documents to determine the place of removal and eligibility for credit of service tax paid on freight charges. The respondent, after remand, passed the impugned order re-confirming the demand, which is now under challenge.

Held

The Court held that the writ petition was liable to be dismissed because the petitioner had an efficacious alternative remedy under Section 35(A) of the Central Excise Act, 1944, before the Commissioner of Central Excise (Appeals). The Court reasoned that the appellate remedy prescribed under the Act should not be circumvented, even if the petitioner believed they had a case on merits. The requirement of pre-deposit of only 10% of the disputed tax for filing an appeal was noted as not being a bar. The Court directed that the writ petition be dismissed with liberty to the petitioner to file a statutory appeal within 30 days, and if filed, the Appellate Commissioner should entertain and dispose of it on merits. The Court also noted that the decisions cited by the petitioner would be considered by the Appellate Commissioner. The issue of jurisdiction and the validity of the circular were not decided on merits.

Key Issues

1. Whether the impugned order dated September 30, 2020, passed by the Respondent is without jurisdiction and in violation of Circular No. 1065/4/2018-CX dated June 8, 2018 (Petitioner's contention). 2. Whether the petitioner has an alternate remedy before the Appellate Commissioner, rendering the writ petition not maintainable (Respondent's contention). The petitioner argued that the adjudicating authority's order was without jurisdiction and violated a binding circular. The respondent contended that the petitioner had an alternative statutory remedy of appeal before the Commissioner (Appeals) under Section 35(A) of the Central Excise Act, 1944, and therefore, the writ petition under Article 226 of the Constitution was not maintainable. The petitioner's argument regarding the merits of the case was not fully elaborated in the provided text, but the core of their challenge was the jurisdiction and violation of the circular.