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2022 (12) TMI 564 - HC - Service TaxMaintainability of petition - availability of alternative remedy - whether we should exercise writ jurisdiction to set aside the order passed by the Tribunal against which a substantive appeal is available? - HELD THAT:- The Tribunal has sought to reconcile the decisions in the cases of SBI Card and Payments Services Pvt Ltd [2015 (11) TMI 909 - CESTAT NEW DELHI] and Citi Bank [2016 (2) TMI 983 - CESTAT CHENNAI] and of the larger bench in Standard Chartered Bank [2015 (8) TMI 686 - CESTAT DELHI (LB)]. Tribunal has considered the decisions of the co-ordinate benches and that of the larger bench and, in its opinion, found that the decisions of the larger bench have not been considered in proper perspective and that it will follow the decision of the larger bench. This view could ultimately be found in appeal as erroneous in law, but it cannot be considered as indiscipline. The Tribunal can conclude that it will follow the decision of larger bench. Though the words per incuriam have not been specifically used but the reasoning of the Tribunal indicates that it has proceeded on those lines. There was a direct refusal to follow the decisions of the co-ordinate bench. In light of such a stark refusal, the Division bench found that extraordinary jurisdiction had to be exercised despite the availability of an appeal remedy. We do not find that the case at hand is of such nature as the case of Mercedes Benz India, where writ jurisdiction needs to be exercised, and the appropriate remedy for the Petitioner would be of appeal. Filing an appeal by itself cannot be considered as prejudice. As regards the prejudice by erroneous finding is concerned if the finding is erroneous and patently contrary to the record, that can be corrected in appeal. It is not that the moment there is an erroneous or incorrect finding, writ jurisdiction has to be exercised. As emphasized in the order passed in Infra Dredge Services Pvt. Limited, totality of the circumstance will have to be considered and not only the stand-alone grounds. No case is made out for the exercise of writ jurisdiction. Writ Petition is dismissed.
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