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of <h1>Maintainability of writs where alternate statutory remedy requires pre-deposit; writ dismissed, petitioner ordered to exhaust statutory appeal</h1> Dominant issue: Maintainability in view of an alternate statutory remedy and pre-deposit requirement. Reasoning: Where an alternate efficacious remedy ... Maintainability of petition - availabillity of alternative remedy - requirement of pre-deposit - Principles of natural justice - Order-in-Original was never served upon the petitioner - issuance of the show-cause notice was barred by limitation or not - HELD THAT:- Although the mere existence of an alternate remedy can never be a bar to this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution, still, this is a self-imposed limitation that, when an alternate and efficacious statutory remedy is provided under the statute, ordinarily, the party must exhaust such remedy before invoking the extraordinary jurisdiction of this Court - the issue of limitation would involve the adjudication of mixed questions of fact and law. Similarly, the issue of whether the services rendered by the petitioner fall within the exempted category would also require adjudication as a factual issue. The argument that the requirement of a pre-deposit of 7.5 per cent renders the statutory remedy less efficacious cannot be accepted. Apart from the fact that the demand for service tax in this case is only Rs. 4,89,582/-, this Court cannot be expected to ignore the statutory Scheme. The Hon’ble Supreme Court has time and again held that whenever an alternate remedy is provided under the statute, it is only in exceptional circumstances that the same could be bypassed. Therefore, if the case of the impugned order or impugned action being entirely without jurisdiction or in breach of the principle of natural justice is not made out, there is no question of entertaining the writ petition by-passing the statutory remedies provided under the law. In the case of Oberoi Constructions Ltd. Vrs. the Union of India & Ors. [2024 (11) TMI 588 - BOMBAY HIGH COURT], the Bombay High Court had the occasion to deal with similar issues concerning the by-passing of alternate remedies. By relying upon the reasoning in the said decision, as also the reasoning in the various precedents referred to, we are not inclined to entertain this petition. The interests of justice would be best served by directing the petitioner to pursue the alternative remedies provided under the statute - Since it is now admitted that the order which was dispatched to the petitioner was returned unserved, it is directed that if the petitioner institutes an appeal within six weeks from today, after complying with all prescribed pre-conditions, including the condition of pre-deposit, then the appellate authority must consider such appeal on merits without adverting to the issue of limitation. This writ petition is disposed of. Issues: Whether the writ petition under Article 226 should be entertained to bypass the statutory appellate remedy against an Order-in-Original demanding service tax, or whether the petitioner must be relegated to the statutory appeal; and whether exceptions to exhausting the alternate remedy (such as absence of jurisdiction, violation of natural justice, or impracticability due to pre-deposit) apply.Analysis: The statutory scheme provides an alternate appellate remedy which is ordinarily to be exhausted before invoking extraordinary writ jurisdiction. Questions whether the impugned order suffers from want of jurisdiction or is barred by limitation, and whether the services are exempt, raise mixed questions of fact and law that are suited for determination by the specialised adjudicatory authorities under the statute. The availability of a pre-deposit requirement and the quantum of demand are factors to be considered but do not, by themselves, render the statutory remedy ineffectual. Exceptional circumstances that would justify bypassing the statutory remedysuch as orders passed without jurisdiction or breaches of natural justicehave not been established on the record.Conclusion: The writ petition is not entertained and the petitioner is directed to pursue the statutory appeal; the petitioner is granted liberty to file the appeal within six weeks and, upon instituting the appeal after complying with prescribed pre-conditions including pre-deposit, the appellate authority must decide the appeal on merits without taking a preliminary view on limitation. This outcome is in favour of Revenue.
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