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TMI Blog2015 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... in this writ appeal is the order of the learned single Judge passed in W.P(MD)No.5273 of 2008, dated 31.10.2011, wherein the learned single Judge took a view that as to the challenge to the final order passed by the original authority, dated 06.06.2008, there is an effective efficacious remedy available before the appellate authority, namely, Commissioner of Customs and Central Excise, Tiruchirappalli and therefore, dismissed the writ petition, as against which, the present writ appeal is filed. 3. The original authority, namely, Additional Commissioner of Central Excise, Trichy, in the impugned proceedings in C.No.V/ST/15/44/2007-Cx.Adj., Order No.5/2008-ST, dated 06.06.2008, passed an order confirming the demand of a sum of Rs. 50,47,395 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager of M/s.Associated, as he happened to be the authorized signatory for the service tax matters at the time when the offence was committed by M/s.Associated; imposing a penalty of Rs. 200/- (Rupees Two Hundred only) per day on the notice in respect of the service tax paying during the period from 01.04.1998 to 17.04.2006 under the provisions of Section 76 of Finance Act, 1994; and imposing a penalty of 2% per month in respect of the service tax payable during the period from 18.04.2006, till the date of payment of service tax due, under Section 76 of the Finance Act, 1994 on the notices and the penalty so payable under Sl.Nos.(i) and (ii) shall not exceed the actual amount of service tax payable. 4. Earlier, the appellant challenged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s chosen to challenge the original order by filing W.P(MD)No.5273 of 2008 and the learned single Judge, placed reliance on the decision of the Honourable Supreme Court in Raj Kumar Shivhare v. Directorate of Enforcement reported in (2010) 4 SCC 772, wherein it is held that 'When a statutory forum is created by law for redressal of grievance and that too, in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation and the High Court is a statutory forum of appeal on a question of law and that should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction.', and accordingly, dismissed the writ petition, by order dated 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 29.07.2004 under Section 73(1)(a) of the Act. However, the said notice was challenged before the Writ Court and the same was dismissed, as against which, a writ appeal was filed. By that time, the authority has taken a decision to pass final orders and therefore, the Writ Court as well as the appellate Court took a view that the show cause notice merged with the final orders and dismissed the appeal as it has become infructuous. The review application filed by the appellant was disposed of, with liberty to raise all his contentions before the concerned forum. 10. Now, it has come to understand from the averments made by the learned Counsel for the respondent in the counter dated 27.04.2009, which has been rightly observed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been paid or has been short-paid or any sum has erroneously been refunded, or (b) notwithsanding that there has been no omission or failure as mentioned in clause (a) on the part of the assesee, the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise has in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under-assessed or service tax has been paid or has been short-paid or any sum has erroneously been refunded, he may, in cases falling under clause (a), at any time within five years, and in cases fallin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. 13. Noticing that the writ petition has been dismissed as there is an effective efficacious remedy available and the appellant having chosen to prefer the appeal before the appellate authority, the Commissioner of Central Excise (Appeals), Tiruchirappalli, vide appeal No.113/08- TRY, as against the original order dated 06.06.2008 and as the appellant's contention on the point of limitation also warrants consideration, it is always open to the appellant to go before the appellate authority for adjudication of the matter in accordance with law. 14. Therefore, as the finding of the learned single Judge as to the appeal remedy is not contrary to law and in view of the availability of efficacious alternative remedy, the stand taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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