2024 (6) TMI 1333 - HC - Service Tax

Writ petition dismissed as adequate statutory remedy exists through Section 86 appeal to CESTAT under Finance Act 1994

M/s Brahmaputra Television Network Versus The Union of India, The Commissioner [Appeals] CGST, Central Excise and Customs, Guwahati, The Additional Commissioner, GST & Central Excise Commissionerate, Guwahati, The State of Assam, The Director, Directorate of Information and Public Relations, Dispute, Guwahati

M/s Brahmaputra Television Network Versus The Union of India, The Commissioner [Appeals] CGST, Central Excise and Customs, Guwahati, The Additional ... Issues Involved:1. Violation of principles of natural justice.2. Jurisdiction of the Adjudicating Authority.3. Adequacy of the Demand-cum-Show Cause Notice.4. Adequacy of the opportunity provided to the petitioner.5. Maintainability of the writ petition despite the availability of statutory remedies.Detailed Analysis:1. Violation of Principles of Natural Justice:The petitioner argued that the principles of natural justice were violated during the proceedings leading to the Order-in-Original and the Order-in-Appeal. The Adjudicating Authority mentioned a letter dated 04.09.2020, which the petitioner claimed was never received. The petitioner contended that had the letter been received, they could have responded appropriately, potentially avoiding the Demand-cum-Show Cause Notice. The court noted that the petitioner did not raise the issue of non-receipt of the letter in its initial reply but only during the appeal. The court emphasized that disputed questions of fact, such as the issuance and receipt of the letter, are to be determined by the adjudicating and appellate authorities, not in writ proceedings.2. Jurisdiction of the Adjudicating Authority:The petitioner contended that the Adjudicating Authority illegally invoked the extended period under the proviso to Section 73(1) of the Finance Act, 1994, to issue the Demand-cum-Show Cause Notice. The court observed that the Adjudicating Authority has the jurisdiction to issue such a notice within five years if there are reasons to believe that any of the grounds mentioned in the proviso exist. The adequacy and sufficiency of the reasons for invoking the extended period can be challenged before the appellate tribunal, which is competent to decide on such issues.3. Adequacy of the Demand-cum-Show Cause Notice:The petitioner argued that the Demand-cum-Show Cause Notice was issued without proper jurisdiction and was based on incorrect facts. The court noted that the Adjudicating Authority had recorded reasons in the notice, citing information from the Income Tax Department and alleging suppression of facts and short-payment of Service Tax. The court held that the appellate tribunal can examine whether the power to extend the period was properly exercised and whether the grounds for invoking the extended period were established.4. Adequacy of the Opportunity Provided to the Petitioner:The petitioner claimed that they were not given adequate opportunity to present their case, including the opportunity to produce a vital document during the appellate proceedings. The court observed that the petitioner was given opportunities for personal hearings before both the Adjudicating Authority and the Appellate Authority. The court held that the issue of whether the petitioner was given adequate notice and opportunity can be examined by the appellate tribunal.5. Maintainability of the Writ Petition Despite Availability of Statutory Remedies:The court discussed the principles laid down in various judgments regarding the maintainability and entertainability of writ petitions when an alternative statutory remedy is available. The court held that while the writ petition is maintainable, it should not be entertained in the present case as the petitioner has an adequate and efficacious statutory remedy of appeal under Section 86 of the Finance Act, 1994. The court emphasized that the appellate tribunal is competent to address the issues raised by the petitioner, including the adequacy of reasons for invoking the extended period and the alleged violation of principles of natural justice.Conclusion:The court concluded that the writ petition should not be entertained at this stage, reserving the liberty to the petitioner to avail the statutory remedy of appeal provided under Section 86 of the Finance Act, 1994. The court also observed that if an application for condoning the delay and an appeal are preferred by the petitioner, the appellate tribunal shall consider the same in accordance with law and on its own merits. Consequently, the interim order passed earlier was recalled.