Commissioner's order quashing Notification 21/2017 CE upheld as petitioner failed to exhaust Section 35B appeal remedy

The HC dismissed a writ petition challenging Commissioner Central Excise's order regarding quashment of Notification No. 21/2017 CE dated 18.07.2017, which rescinded Notification No. 1/2010 CE concerning special rate fixation for goods manufactured during April 2017 to 07.07.2017. The court held the petition non-maintainable as petitioner failed to exhaust alternative remedy of appeal before CESTAT under Section 35B of Central Excise Act, 1944. Despite petitioner's claim of not challenging merits, the petition clearly entered into case merits by highlighting legal lacunae in the impugned order.

---

---

Issues Involved:
1. Quashment of Notification No. 21/2017 CE.
2. Dismissal of the petitioner's application by the Commissioner, CGST Commissionerate Jammu.
3. Availability of alternate efficacious remedy.

Summary:

Issue 1: Quashment of Notification No. 21/2017 CE
The petitioner sought the quashment of Notification No. 21/2017 CE dated 18.07.2017, which rescinded Notification No. 1/2010 CE without saving operation regarding filing of applications for fixation of special rate of actual value addition for goods manufactured and cleared during April 2017 to 07.07.2017. The petitioner argued that the rescission occurred before the due date of 30.09.2018 for filing such applications.

Issue 2: Dismissal of Petitioner's Application
The petitioner's application for fixation of the special rate of actual value addition for the period April 2017 to June 2017 was dismissed by the Commissioner, CGST Commissionerate Jammu, on 03.05.2023, as time-barred. The petitioner sought a writ of mandamus to direct the respondent to allow the benefit of the special rate for the specified period by considering the application dated 08.02.2023.

Issue 3: Availability of Alternate Efficacious Remedy
The court noted that the petitioner admitted in the writ petition that the order by the Commissioner, CGST Commissionerate Jammu, is appealable before the CESTAT u/s 35B of the Central Excise Act, 1944. The court emphasized that alternate efficacious remedies should not be bypassed, citing precedents from the Supreme Court, including Punjab National Bank v. O.C. Krishnan and others and CCT, Orissa v. Indian Explosives Ltd., which highlighted the importance of exhausting alternative remedies before approaching the court.

Conclusion:
The court found the writ petition not maintainable as the petitioner did not avail the alternate efficacious remedy provided by the Act. The petition was dismissed with no order as to costs.

---