Writ petition dismissed as statutory appeal remedy available under Section 35 of FEMA for challenging tribunal orders

M/s. Sashreek Constructors Private Limited & Anr. Versus The Customs, Excise and Service Tax Appellate Tribunal & Anr.

M/s. Sashreek Constructors Private Limited & Anr. Versus The Customs, Excise and Service Tax Appellate Tribunal & Anr. - 2024 (390) E.L.T. 703 (Cal.) Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal regarding pre-deposit for maintaining appeal.

Analysis:
The petitioners challenged the order of the Tribunal dated 5th January, 2024, which directed the petitioner to make a pre-deposit for maintaining the appeal. The petitioners, engaged in providing work contract services, claimed that the construction of bailey bridges, awarded to them by the State Government, was not liable to service tax as the bridges were intended for general public use. A demand-cum-show cause notice was issued for service tax, interest, and penalties for the financial year 2015-16. The respondent confirmed the demand, leading to the petitioners filing a writ petition in the High Court at Guwahati, which was dismissed with liberty to file a statutory appeal before the Tribunal.

The Tribunal, by an order dated 5th January, 2024, directed the petitioners to make a pre-deposit to maintain the appeal. The petitioners argued that the High Court had the jurisdiction to grant exemption and cited relevant judgments to support their contention. On the other hand, the respondent argued that post-amendment of Section 35F of the Act, the Tribunal could not entertain an appeal without the mandatory pre-deposit. The respondent relied on case law to support this argument.

The High Court noted that the order of the Tribunal directing the pre-deposit was appealable before the High Court as per Section 35G of the Act. The Court observed that while the appeal was maintainable, it was subject to statutory limitations and the requirement of substantial questions of law. The Court found that the petitioners did not challenge the jurisdiction of the Tribunal or allege a violation of natural justice. Therefore, the Court held that the writ petition should not be entertained due to the availability of alternative remedies and lack of territorial jurisdiction.

In conclusion, the High Court dismissed the writ petition, emphasizing that allowing such petitions would bypass statutory provisions. The Court also noted that the judgment cited by the petitioners did not assist their case. No costs were awarded, and parties were directed to comply with formalities for obtaining a copy of the order.