2017 (12) TMI 767 - HC - Central Excise

Maintainability of appeal - time limitation - jurisdiction - Held that - question as to whether action was taken within the time provided under Section 73(1) of the Finance Act, or under the extended period and violation of natural justice, also can be urged before the appellate authority - we are not inclined to entertain the appeal - Appellant/Writ petitioner is permitted to move the appellate forum - appeal dismissed being not maintainable.

Issues Involved:
1. Maintainability of the writ petition despite the existence of an alternative remedy.
2. Jurisdiction of the respondent to issue the show cause notice and pass the impugned order.
3. Allegation of mala fides and invocation of the extended period of limitation under Section 73(1) of the Finance Act.
4. Violation of principles of natural justice.
5. Validity of the impugned order based on the merits of the case and the respondent's application of mind.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition Despite the Existence of an Alternative Remedy:
The court emphasized that the writ petition's maintainability is contingent upon the petitioner demonstrating that the case falls within the exceptions carved out by the Supreme Court, which permit bypassing the statutory remedy. The court reiterated that the existence of an alternative and efficacious remedy generally precludes the writ court's interference, particularly in revenue matters. The court cited multiple precedents, including Union of India v. T.R. Verma and C.A. Ibrahim v. ITO, to support the principle that statutory remedies must be exhausted before invoking writ jurisdiction.

2. Jurisdiction of the Respondent to Issue the Show Cause Notice and Pass the Impugned Order:
The court noted that the petitioner did not challenge the respondent's jurisdiction to issue the show cause notice and pass the impugned order. The petitioner had submitted to the jurisdiction by filing a reply to the show cause notice and participating in the adjudication process. The court found no merit in the petitioner's contention that the impugned proceedings were without authority or beyond the scope of the notice issued.

3. Allegation of Mala Fides and Invocation of the Extended Period of Limitation under Section 73(1) of the Finance Act:
The court addressed the petitioner's argument that the invocation of the extended period of limitation was unwarranted and based on a mere change of opinion. The court held that the plea of mala fides was not substantiated, as there was no specific allegation against the respondent. The court also noted that the issue of whether the extended period of limitation was rightly invoked is a factual matter that should be agitated before the appellate authority.

4. Violation of Principles of Natural Justice:
The petitioner claimed that the respondent failed to provide adequate reasons for rejecting the contentions and judgments relied upon by the appellant, and that the order was a non-speaking order. The court found that the respondent had afforded an opportunity of personal hearing to the petitioner, and whether this opportunity was satisfactory is a question of fact. The court held that the petitioner should raise the issue of natural justice before the appellate authority, which is better suited to re-appreciate the factual matters and documents.

5. Validity of the Impugned Order Based on the Merits of the Case and the Respondent's Application of Mind:
The petitioner argued that the respondent had not applied his mind and had merely reproduced the contents of the show cause notice without considering the merits of the case. The court found that the nature of the transaction and the documents relied upon for the availment of CENVAT Credit are factual matters that should be addressed by the appellate authority. The court emphasized that the statutory forum created by law for redressal of grievances should not be bypassed.

Conclusion:
The court dismissed the writ appeal, upholding the writ court's order and directing the appellant to pursue the alternative remedy provided under the statute. The court extended the time granted by the writ court for filing an appeal before the appellate authority by two weeks. The court reiterated the principle that when a statutory forum is available, a writ petition should not be entertained unless there are compelling reasons to do so. The appeal was dismissed with no costs, and the connected Civil Miscellaneous Petition was also dismissed.

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