AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 983
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....on to the entertainability of the writ petition has been raised by Mr. Roy, learned advocate for the respondents. According to him, the Bench ought to refuse to hear the petitioner because of availability of an appellate remedy (under section 35B of the 1994 Act) that it has not pursued. 3. Mr. Sen, learned senior advocate representing the petitioner countered the objection by contending as follows : (i) The Commissioner acted without jurisdiction; (ii) Although the petitioner had responded to the show cause notice dated October 7, 2013 by submitting a detailed written reply, the Commissioner observed that the petitioner had failed to respond; (iii) The petitioner was not asked to show cause notice under section 114A of the 1962 Act and by imposing penalty thereunder, it was practically condemned unheard. Elaborating the first point, it was contended by Mr. Sen that four show-cause notices had been carried forward leading to a common order being passed by the Commissioner, Durgapur Commissionerate, impugned in this writ petition. However, the first two of such show-cause notices dated October 7, 2013 and April 29, 2014 had been issued by the Commissioner, Central Exc....
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....(326) ELT 3 (S.C.), Noble Moulds (P) Ltd. v. Commissioner of Central Excise, reported in 2010 (259) ELT 338 (Del.), and Amrit Foods v. Commissioner Central Excise, U.P., reported in 2005 (190) ELT 433 (S.C.), were relied on to support the contention that without a show-cause notice having been issued under section 114A of the 1962 Act, penalty could not have been imposed. 6. Mr. Roy was called upon by the Bench to answer the jurisdictional point raised by Mr. Sen. 7. On behalf of the respondents, Mr. Roy placed before the Bench a notification dated September 16, 2014 issued by the Government of India, Ministry of Finance (Department of Revenue), whereby in supersession of an earlier notification dated March 8, 2002, the Central Board of Excise and Customs specified the jurisdiction of the Principal Chief Commissioners of Central Excise, the Chief Commissioners of Central Excise, the Principal Commissioners of Central Excise, the Commissioners of Central Excise, the Commissioners of Central Excise (Appeal) or the Commissioners of Central Excise (Audit), etc. Attention of the Bench was drawn to Table III(B) specifying the jurisdiction of the Commissioner of Central Excise, Bolp....
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....y the Sales Tax Act? Surely not. There must be something more in a case to warrant the entertainment of a petition under Article 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act.***" 12. The next decision requiring consideration is Bhopal Sugar Industries Ltd. v. D.P. Dube, Sales Tax Officer, reported in AIR 1967 SC 549. The Madhya Pradesh High Court had dismissed the writ petition of the appellant by which quashing of the order of the respondent imposing liability for payment of sales tax was prayed. The Court held that the High Court committed an error in dismissing the writ petition on a ground not set up by the respondent in his counter affidavit. While dismissing the appeal on merits considering the other contentions that were raised in the writ petition, this is what the Court said : "7. The legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The Taxing ....
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....******** 11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.***" 14. Yet recently, the Supreme Court in CIT v. Chhabil Dass Agarwal, reported (2014) 1 SCC 603, upon considering a host of decisions had the occasion to opine that : ....
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....n two judges is conferred by section 35G of the 1994 Act, stating that the case involves a substantial question of law and if satisfied the High Court is required to formulate such question and decide it. Section 35L also contemplates an appeal to the Supreme Court. Invocation of the High Court's power to issue high prerogative writs under Article 226 of the Constitution in matters relating to charging and demanding duty, in view of such fora made available by the statute, ought not to be permitted as a matter of course or else the will of the people expressed by the legislature in the relevant enactment would be rendered nugatory. It is only in very exceptional cases when a party complains of infringement of fundamental rights, or where facts are not disputed and such party establishes assumption of jurisdiction by an authority without being possessed thereof, or the complaint of violation of natural justice is so pronounced and gross, that a writ court in the judicious exercise of its discretion may choose to interfere. 16. Bearing in mind the above, none of the three points raised by Mr. Sen has appealed to this Bench to entertain the writ petition by derailing the procedure ....