Shri Asok Roy vs. Commissioner (Appeal), CGST And Anr.

Held

The Court considered the submissions of both parties. It noted that the petitioner had a statutory remedy of appeal under Section 86 of the Finance Act, 1994, and had already availed remedies before two statutory forums (adjudicating officer and appellate authority). The Court found that some of the grounds raised by the petitioner involved factual scrutiny. Therefore, the Court deemed it proper to relegate the petitioner to invoke the appellate remedy before the learned CESTAT. The petitioner was granted liberty to raise all grounds of fact and law before the CESTAT and undertake necessary compliance for filing such an appeal. If an appeal was filed within two weeks from the date of the order, the CESTAT was directed to consider the issue of limitation empathetically, acknowledging the petitioner's pursuit of remedy before the Writ Court. The CESTAT was to consider the appeal in accordance with law if filed.

Facts

The petitioner, Shri Asok Roy, challenged an order dated 10.10.2022 passed by the Joint Commissioner, Central GST and Central Excise, Agartala (Respondent No. 2). This order imposed service tax liability, interest, and penalties for non-filing of returns under Sections 73(1), 75, 77, and 78 of the Finance Act, 1994. The petitioner's appeal before the Commissioner (Appeal) was dismissed due to delay and failure to make pre-deposit. The petitioner then filed a writ petition under Article 226 of the Constitution of India, raising grounds including the show cause notice being time-barred, exemption under a mega exemption notification, and non-compliance with pre-consultation requirements. The revenue objected to the writ petition's maintainability, citing the availability of a statutory appeal before the CESTAT.

Key Issues

1. Whether the show cause notice issued under Section 73(1) proviso of the Finance Act, 1994, was beyond the five-year period of limitation from the relevant date, making the proceedings for the first half of the financial year 2016-2017 without jurisdiction? 2. Whether the petitioner was entitled to exemption under mega exemption notification No. 25/2012 dated 20.06.2012 for contracts relating to bridge and road construction, and if the investigation leading to the show cause notice was proper? 3. Whether the department was required to undertake pre-consultation as per the Master Circular dated 10.03.2017, given the demand of service tax dues exceeded fifty lakhs? Petitioner's arguments: The show cause notice was time-barred. The petitioner was exempt under the mega exemption notification. Pre-consultation was not done as required. The investigation relied on 26AS statements and was not properly directed. The adjudicating authority and appellate authority failed to appreciate the reply and the issue of jurisdiction. Revenue's arguments: The writ petition is not maintainable as a statutory appeal under Section 86 of the Finance Act, 1994, is available before the CESTAT. The grounds raised involve mixed questions of fact and law that the CESTAT can properly appreciate.