Case Law Details
Mahaveer Foods & Beverages Vs Principal Commissioner of GST & Central Excise (Madras High Court)
Conclusion: In the absence of exhausting appellate remedies by assessee, the High Court was losing the benefit of deciding the classification of product ‘Herbal Sherbat Granules’ on merits as High Court could not conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts should not provide an unnecessary opportunity to assessee to escape from the liability merely on the ground on jurisdictional error, which was rectifiable.
Held: Assessee was a proprietorship concern and procured Tea from registered tea suppliers, Herbs & Spices from dealers in powder form and permitted food. All the said items were mixed together and made as a product, which was called as “Herbal Sherbat Granules”. It was only a flavoured tea and not a ready to drink or instant tea item. It contained around 90% of Tea. In response to the show cause notice seeking to classify the above product under subheading No.2101 2090, assessee submitted objections and the 1st respondent considered and pass orders in proceedings dated 29.11.2017, which was under challenge in the present writ petition. Assessee had stated that the respondent all along informed that the samples were sent to the Central Food Technological Research Institute, Mysuru, and in an application submitted by assessee under the Right to Information Act, a reply was furnished wherein there was an indication that “No samples were received”. Further, it was stated that the analysis were not performed in the absence of any samples and without conducting any analysis of the samples, the 1st respondent decided the issues, which was improper and thus, the impugned order was to be set aside and the matter to be remanded back. It was held that the Court had no hesitation in arriving a conclusion that assessee were bound to exhaust the Appellate Remedy as contemplated under Section 35-B of the Central Excise Act, 1944. Assessee were at liberty to approach the Appellate Authority by filing an appeal in a prescribed form and by complying with the provisions of the Act. Assessee was also at liberty to file such an appeal before the Appellate Tribunal within a period of 30 days from the date of receipt of a copy of this order and in the event of filing any such appeal, the Appellate Tribunal should adjudicate the matter on merits and in accordance with law by affording opportunity to all the parties concerned. In the absence of exhausting such remedies, the High Court was losing the benefit of deciding the matter on merits as the High Court could not conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts should not provide an unnecessary opportunity to assessee to escape from the liability merely on the ground on jurisdictional error, which was rectifiable.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
The order-in-original in proceedings dated 29.11.2017 passed by the first respondent is under challenge in the present writ petition.
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