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TMI Blog2016 (7) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 65(105)(zzzzj) of the Finance Act, 1994 on the lease charges of Rs. 128.38 crores (rounded off) received by the petitioner. Consequently, the competent authority confirmed the service tax demand of Rs. 13.7 crores (rounded off) for the period between 16.05.2008 and 30.06.2012 with interest and penalties. 2. Admittedly, against this order-in-original, statutory appeal lies before the CESTAT. Admittedly, no such appeal has been filed by the petitioner. It is equally admitted that, against the order of CESTAT, a further tax appeal would be available to the High Court on a substantial question of law. In other words, despite availability of statutory appellate remedy, the petitioner has approached the High Court in this writ petition witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us to ignore the statutory appellate remedy unless it is pointed out that the remedy is either not efficacious or speedy or that on certain well laid down exceptions carved out by series of judgements of Supreme Court and the High Court, the Court would be persuaded to permit the petitioner to pursue the writ petition directly without insisting on filing the appeal as provided under the statute. 5. In this context, we may refer to the decision of Supreme Court in case of Commissioner of Income Tax and ors vs. Chhabil Dass Agarwal reported in 357 ITR 357, in which, the Court referring to large number of earlier judgements on the question of entertaining a writ petition when alternative remedy is available, observed that while there are so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assesseewrit petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. 21. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Bharti Airtel Ltd. vs. State of Karnataka reported in 2012 (25) ITR 514 would be of no avail to the petitioner since here also, the question was of charging service tax on telecommunication services. The decision in case of Tata Iron and Steel Co. vs. S.R.Sarkar and ors reported in AIR 1961 SC 65 does not lay down ratio which can be directly applied to the facts of the case as can be seen from following observations of the Supreme Court to which heavy reliance was placed by the Counsel for the petitioner: " Hanumantappa Jamkhandi v. The Union of India and another (1). In Ramjilal's case (2), this Court held that the protection against imposition and collection of tax save by authority of law directly arises from Art. 265 and is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged; but in Kailash Nath and another v. The State of Uttar Pradesh and others (6) a petition challenging the levy of a tax was entertained by this Court even though the Act under the authority of which the tax was sought to be recovered was not challenged as ultra vires. It is not necessary for purposes of this case to decide whether the principle of Kailash Nath's case (6) is inconsistent (1) [1955] 1 S.C.R. 769 (3) [1954] S.C.R. 1122." 8. We may record that the competent authority, in the impugned order, has observed that the petitioner has voluntarily paid value added tax which would not automatically mean that service tax, if otherwise payable, cannot be recovered. Whether the petitioner has paid such tax voluntarily or upon coercion o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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