The Commissioner (Appeals) has no option to adjudicate maintainability of appeal when the Hon’ble High Court dismissed the Writ Petition filed on the ground that alternate remedy is available

[Bimal jain]

Dear Professional Colleague,

The Commissioner (Appeals) has no option to adjudicate maintainability of appeal when the Hon’ble High Court dismissed the Writ Petition filed on the ground that alternate remedy is available

We are sharing with you an important judgment of the Hon’ble CESTAT, Andhra Pradesh, in the case of S. V. Rubber Company (P.) Ltd. Vs. Commissioner of Customs, Central Excise and Service Tax (Appeals-II), Hyderabad [2014 (10) TMI 199 - ANDHRA PRADESH HIGH COURT] on following issue:

Issue:

Whether the Commissioner (Appeals) has option to adjudicate maintainability of appeal, when the Hon’ble High Court dismissed the Writ Petition filed on the ground that alternate remedy is available?

Facts and background:

S. V. Rubber Company (P.) Ltd. (“the Petitioner”) filed a Writ petition before the Hon’ble High Court of Andhra Pradesh against the Department’s recovery notices issued under Section 11 of the Central Excise Act, 1944 (“the Excise Act”). The Hon’ble High Court vide Order dated October 7, 2013 dismissed the same on the ground that under Section 35 of the Excise Act an efficacious remedy of appeal is provided which can be pursued by any person aggrieved by any decision passed under the Excise Act. Therefore, without exhausting the alternative remedy of appeal provided under the Excise Act, the Petitioner cannot straight away invoke the jurisdiction of High Court under Article 226 of the Constitution of India.

Accordingly, the Petitioner filed a regular appeal before the Ld. Commissioner. The Ld. Commissioner without deciding the appeal on merit, passed an Order (“Impugned Order”) dismissing the appeal with the finding that no appeal lies against notices issued under Section 11 of the Excise Act since it is not an Order as contemplated under Section 35 of the Excise Act. Being aggrieved, the Petitioner again filed a Writ petition before the Hon’ble High Court of Andhra Pradesh.

The Petitioner contended that the Impugned Order is contrary to the observations of the Hon’ble High Court and also a gross breach of quasi-judicial discipline. Further, the decision of the Division Bench of the Court which opined that appeal is alternative remedy was not challenged by the Department. Furthermore, the Commissioner being an authority subordinate to the Court within the meaning of Article 227 of the Constitution of India, has not rendered any decision independently at all rather accepted the opinion of the Department and dismissed the appeal holding the same being non-maintainable.

While, the Department contended that the Commissioner was of the view that statutory provision does not permit such appeal.

Held:

The Hon’ble High Court of Andhra Pradesh allowed the Writ petition and restores the appeal filed by the Petitioner with the direction that the appeal needs to be heard and disposed of within a period of two months from the date of communication of this Order and a compliance report is to be submitted to the Registry concerned after expiry of two months.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Flat No. 34B, Ground Floor, Pocket - 1,

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Delhi – 110091, India

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Email: bimaljain@hotmail.com

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