Case Law Details
Sailaja Commercial Construction Private Ltd. Vs Union of India (Gauhati High Court)
The Gauhati High Court dismissed the intra-court appeal challenging the dismissal of a writ petition against an Order-in-Original imposing Service Tax demand of ₹3,48,03,981 along with penalties under Sections 77 and 78 of the Finance Act, 1994. The Single Bench had declined to entertain the writ petition on the ground that the petitioner had an effective statutory remedy of appeal. The Division Bench upheld this view, holding that the availability of a statutory appeal made the writ petition not maintainable in the absence of any exceptional circumstances. The Court rejected the argument that the statutory pre-deposit requirement rendered the appellate remedy ineffective, observing that mere pre-deposit does not make the statutory remedy inefficacious. Relying on the Supreme Court’s decision in Assistant Commissioner of State Tax v. Commercial Steel Limited, the Court dismissed the appeal as devoid of merit.
The Gauhati High Court upheld the dismissal of a writ petition challenging a Service Tax demand and penalties, holding that the petitioner had an effective statutory remedy of appeal. The Court found that the requirement of making a statutory pre-deposit does not render the appellate remedy ineffective or justify bypassing the statutory appeal mechanism. Referring to the Supreme Court’s ruling in Assistant Commissioner of State Tax v. Commercial Steel Limited, the Court observed that writ jurisdiction should ordinarily not be exercised against appealable orders unless recognised exceptions exist. As no such exception was established, the intra-court appeal was dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF GAUHATI HIGH COURT
The instant intra-court appeal is directed against the judgment/final order dated 18.04.2022 rendered by the learned Single Bench in WP(C) No.153/2022 disposing of the writ petition preferred by the petitioner/appellant against the order dated 09.09.2021 issued by the Principal Commissioner of Central Goods and Service Tax and Central Excise, Guwahati in Order in Original No.05/ Pr.Commr./ST/ GHY2021-2022 whereby a demand of Rs.3,48,03981 of service tax along with equivalent amount of penalty in terms with Section 78 of the Finance Act 1994 and penalty in terms of Section 77(1) & Section 77(2) of the Finance Act of 1994 has been imposed upon the petitioner.
The learned Single Bench held that the Statutory remedy of filing an appeal is available to the writ petitioner and thus, the writ petition was not fit to be entertained.
We are of the firm view that the expression of opinion by the learned Single Bench as indicated in the impugned order is absolutely justified.
The contention of the learned counsel for the appellant/writ petitioner that a statutory pre-deposit is required to be made for filing an appeal and thus, the remedy is not efficacious, is clearly unworthy of credence because mere requirement of furnishing or making the pre-deposit with the appeal under Section 107 of the GST Act would not made the remedy inefficacious.
The Hon’ble Supreme Court in the case of Assistant Commissioner of State Tax & Ors. Vs. Commercial Steel Limited, reported in 2021 SCC online SC 884 has laid down beyond the pale of doubt that the remedy of appeal under the provisions of GST Act is an efficacious statutory remedy and ordinarily, the writ jurisdiction should not be invoked to examine the validity of a demand notice. None of the exceptions carved out by Hon’ble the Supreme Court are made out so as to entertain the challenge laid to an appealable order in exercise of the extraordinary writ jurisdiction.
As a consequence of above discussion, we find no reason to interfere with the impugned order dated 18.04.2022 passed by the learned Single Bench in WP(C) No.153/2022.
Consequently, the appeal is dismissed as the same lacks merit.
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