M/S.Gemini Iron & Steel PVT vs. The Assistant Commissioner

Facts

The appellant, M/s.Gemini Iron and Steel Private Limited, filed a writ petition challenging a detention notice dated January 4, 2019, issued by the Assistant Commissioner of GST & Central Excise. The appellant contended that the order in original, dated January 9, 2018, confirming a demand of Rs. 70,01,123/-, was not served on them. The writ court had initially granted a stay of the detention order on the condition of depositing 40% of the demanded amount. The appellant sought modification of this interim order, arguing that if they filed a statutory appeal, they would only be required to deposit 7.5% of the duty demanded. The writ appeal was filed against the writ court's order dismissing the modification petition. The appellant ultimately sought to withdraw the writ petition to file a statutory appeal against the order in original.

Held

The Court held that the writ petition was not maintainable because it challenged a consequential detention notice without challenging the underlying order in original. The Court noted that when an order in original has been passed against a party, they are not entitled to challenge only the consequential proceedings without challenging the order in original itself. However, acknowledging the petitioner's desire to file a statutory appeal against the order in original, the Court disposed of both the writ appeal and the writ petition. The petitioner was permitted to withdraw the writ petition with liberty to file an appeal before the appellate authority challenging the order in original, provided they explained the delay in filing such an appeal. The appellate authority was directed to consider the reasons for delay and pass appropriate orders on the delay petition on merits and in accordance with law.

Key Issues

1. Whether the writ petition challenging a consequential detention notice is maintainable without challenging the underlying order in original? (Question of law) Petitioner's arguments: The petitioner argued that the order in original was not served, and therefore, they were challenging the consequential detention notice. They further contended that the writ court ought to have modified the interim order to allow them to file a statutory appeal, as the condition for filing such an appeal (deposit of 7.5% of duty) was less onerous than the 40% deposit imposed by the interim order. The petitioner sought permission to withdraw the writ petition to file a statutory appeal. Revenue's arguments: The revenue contended that the order in original was duly served on the petitioner, and they possessed proof of service. Therefore, the petitioner's claim of non-service was unjustified, and they were not entitled to challenge the consequential proceedings without challenging the order in original.