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2022 (8) TMI 1397 - CALCUTTA HIGH COURTMaintainability of petition - availability of alternative remedy - service of SCN - writ petition was filed primarily on the ground that notice of hearing was not received by the appellant and therefore, could not appear before the adjudicating authority - HELD THAT:- Admittedly, the order passed by the Joint Commissioner, Service Tax-I, Kolkata is an appealable order and the appeals lies to the Commissioner of Central Excise, Kolkata. Whether notice was served on the appellant or not, is not purely a question of law but a mixed question of fact and law. It may require examination of original documents, despatch register, etc. Therefore, it will not augur well for a Writ Court to examine these disputed questions of fact and the same can be effectively done before the appellate authority, who will have enough jurisdiction to examine all the records, which are on the file of the adjudicating authority. The appellant should not bypass the appellate remedy, which is not only efficacious but effective as well. This principle is more rigidly applied in matters arising under tax in laws, which provides for hierarchy of remedies and such hierarchy of remedies available under the Act should not be lightly interfered with - thus, the appellant should pursue the appellate remedy available under the Act. While affirming the view taken by the Learned Single Bench that the writ petition is not maintainable as the appellant has an effective and efficacious alternative remedy of appeal before the Commissioner of Central Excise, Kolkata, that portion of the order passed by the Learned Single Bench is affirmed and all other findings with regard to service of notice on the appellant stands vacated leaving it open to the appellant to raise all contentions before the first appellate authority - the appeal is disposed of.
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