TMI Blog2016 (7) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... ffer a change. In order to encourage the Bench to go ahead and entertain the writ petition based on the point of error of jurisdiction, the petitioner was required to satisfy the Bench that the error of jurisdiction attributed to the Commissioner, Durgapur Commissionerate is clear, conspicuous and obtrusive. Unfortunately, in its pursuit to satisfy this Bench the petitioner has miserably failed and hence, no exception can be taken to the impugned order by reason of the plea raised by Mr. Sen at least at this stage. It appears from paragraph 55 of the writ petition that presentation of this writ petition has been occasioned to avoid the pre-deposit that is required to be made by the petitioner in terms of section 35F of the 1994 Act. The petitioner ought not to be permitted to abandon the machinery for escaping payment as envisaged in the statute, and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when the remedy open to him by an appeal to the Appellate Tribunal is adequate and efficacious. The writ petition is not entertained and stands dismissed, without costs. - W. P. No. 10544(W) of 2016 - - - Dated:- 15-7-2016 - The Hon'ble Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the show-cause notice dated October 7, 2013 issued by the Commissioner, Central Excuse, Bolpur was duly responded to by the petitioner by its reply dated January 21, 2014, received in the office of the Commissioner, Central Excise, Bolpur, on January 22, 2014. However, the Commissioner, Durgapur Commissionerate at paragraph 3.1 (page 5) of his order recorded that no written reply was submitted by the petitioner. It was, accordingly, contended that the points raised by the petitioner in such reply went unattended which, apart from being a glaring instance of non-application of mind, is in breach of natural justice. On the third point, attention of the Bench was drawn to the fact that although the petitioner was called upon to show-cause why penalty under section 112 of the 1962 Act shall not be imposed, which was duly countered in the reply, penalty under section 114A thereof has been imposed without the petitioner being put on notice in that regard and having any opportunity to meet the point. These, according to Mr. Sen, constitute exceptional reasons for which the writ court ought to entertain the writ petition. 4. To impress upon the Bench that availability of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District of Bankura and Sub-Division Durgapur of Bardhaman District in the State of West Bengal. It is his contention that no error of jurisdiction was committed by the Commissioner, Durgapur Commissionerate in assuming jurisdiction. 8. The parties have been heard. 9. The decisions in Md. Nooh (supra), Whirlpool (supra), Harbanslal Sahnia (supra) and Ratna (supra) no doubt lay down that an alternative remedy available to a party approaching the court under Article 226 of the Constitution does not oust the jurisdiction of the writ court. However, importantly, none of these relate to revenue matters. 10. It would be proper at this stage to take note of certain decisions of the Supreme Court in revenue matters laying down guidelines when a writ petition ought not to be entertained having regard to an efficacious remedy made available by statutory dispensation. 11. In Sales Tax Officer vs. Shiv Ratan G. Mohatta, reported in AIR 1966 SC 142, the Supreme Court was considering an appeal carried against an order of the Rajasthan High Court quashing an order passed by the Sales Tax Officer holding that the writ petitioners had collected and retained certain amount, which shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exercise that jurisdiction by entertaining petitions against the order of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the Taxing Officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the exigibility to tax of transactions the nature of which is admitted, but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case (AIR 1964 SC 1419), Titaghur Paper Mills case [(1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 15. Reading of the aforesaid authorities makes the position clear that insofar as taxing statutes are concerned, interference by a writ court should be few and far between. It cannot be disputed that the 1994 Act has been introduced with the object of consolidating and amending the law relating to Central duties of excise on goods manufactured or produced in the country. A complete machinery is envisaged for the purposes of charging of duty of excise, which is in the nature of a liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulation in the notification dated September 16, 2014 that any show-cause notice issued prior thereto by a commissioner of a particular region shall be taken to its logical conclusion by such commissioner even though on and from the date of the notification, the jurisdiction of the commissioner might suffer a change. In order to encourage the Bench to go ahead and entertain the writ petition based on the point of error of jurisdiction, the petitioner was required to satisfy the Bench that the error of jurisdiction attributed to the Commissioner, Durgapur Commissionerate is clear, conspicuous and obtrusive. Unfortunately, in its pursuit to satisfy this Bench the petitioner has miserably failed and hence, no exception can be taken to the impugned order by reason of the plea raised by Mr. Sen at least at this stage. 18. It is quite true that paragraph 3.1 of the order incorrectly records that the petitioner did not respond to the show cause notice dated October 7, 2013. However, the Commissioner, Durgapur Commissionerate considered the reply of the petitioner dated May 5, 2014 in answer to the second of the show cause notices in the series dated April 29, 2014. Except for a plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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