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M/s. Sova Solar Ltd. & Another Versus The Commissioner of Customs, Central Excise & Service Tax, Durgapur

Maintainability of writ petition - alternative appellate remedy - demands of excise duty and customs duty - petitioner submitted that, (i) the Commissioner acted without jurisdiction; (ii) Although the petitioner had responded to the show cause notice dated October 7, 2013 by submitting a detailed written reply, the Commissioner observed that the petitioner had failed to respond;The petitioner was not asked to show cause notice under section 114A of the 1962 Act and by imposing penalty thereunde .....

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ommissioner 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 r .....

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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 Justice Dipankar Datta, J. For the Petitioner : Mr. Bhaskar Sen, Senior Advocate, Mr. Sekhar B. Shroff, Advocate, Mr. Arijit Chakrabarti, Advocate, Mr. N.K. Chowdhury, Advocate, Mr. D. Banerjee, Advocate, Mr. N. Chowdhury, Advocate For the Respondent : Mr. Pradip Kumar Roy, Advocate, .....

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of the same from the petitioner. 2. A preliminary objection to the entertainability of the writ petition has been raised by Mr. Roy, learned advocate for the respondents. According to him, the Bench ought to refuse to hear the petitioner because of availability of an appellate remedy (under section 35B of the 1994 Act) that it has not pursued. 3. Mr. Sen, learned senior advocate representing the petitioner countered the objection by contending as follows : (i) The Commissioner acted without jur .....

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ommon order being passed by the Commissioner, Durgapur Commissionerate, impugned in this writ petition. However, the first two of such show-cause notices dated October 7, 2013 and April 29, 2014 had been issued by the Commissioner, Central Excise, Bolpur. The argument that has been advanced is that the Commissioner, Durgapur Commissionerate had no authority to decide the proceedings initiated by the show-cause notices issued by the Commissioner, Central Excuse, Bolpur and, accordingly, has acted .....

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r. 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 .....

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& ors., reported in (1998) 8 SCC 1, Harbanslal Sahania & anr. v. Indian Oil Corporation Ltd. & ors., reported in AIR 2003 SC 2120, and Institute of Chartered Accountants of India v. L. K. Ratna & ors., reported in (1986) 4 SCC 537. It was urged that having regard to the exceptional nature of the claim raised by the petitioner, this Bench ought to entertain the writ petition and decide it on merits. 5. The decisions in Commissioner of Central Excise, Nagpur v. Ballarpur Industrie .....

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ld not have been imposed. 6. Mr. Roy was called upon by the Bench to answer the jurisdictional point raised by Mr. Sen. 7. On behalf of the respondents, Mr. Roy placed before the Bench a notification dated September 16, 2014 issued by the Government of India, Ministry of Finance (Department of Revenue), whereby in supersession of an earlier notification dated March 8, 2002, the Central Board of Excise and Customs specified the jurisdiction of the Principal Chief Commissioners of Central Excise, .....

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Division Durgapur of Bardhaman District) in the State of West Bengal. Insofar as the Commissioner, Durgapur at serial no. 32 is concerned, the jurisdiction is exercisable by him in the 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 ( .....

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cious 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 should have gone to the Government. Although the issues involved in the appeal were decided on merits, the Court observed as follows: .....

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the assessee that they would have had to deposit sales tax, while filing an appeal. Even if this is so does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act? Surely not. There must be something more in a case to warrant the entertainment of a petition under Article 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to th .....

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up by the respondent in his counter affidavit. While dismissing the appeal on merits considering the other contentions that were raised in the writ petition, this is what the Court said : 7. The legislature has set up an elaborate and self-contained machinery for investigating whether a transaction is liable to be taxed because it is of the nature of a retail sale within the meaning of the Act. The Taxing Officer is invested with authority to determine the nature of the transaction and its liabi .....

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-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 .....

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x payer to obtain an adjudication from the taxing authorities in the first instance. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, reported in (1983) 2 SCC 433, an order passed by the Orissa High Court dismissing a writ petition on the ground of availability of an efficacious alternative remedy, was under challenge. The Court ruled : 6. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an app .....

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an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can .....

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id that this Court has recognised 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 defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, 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 Pap .....

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e 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 na .....

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ing his conclusions. Should the party proceeded against feel aggrieved by an order passed under the Act, he/it has a right of preferring an appeal under section 35B to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962. A further right of appeal to a Bench of the High Court comprised of not less than two judges is conferred by section 35G of the 1994 Act, stating that the case involves a substantial question of law and if satisfied the H .....

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t is only in very exceptional cases when a party complains of infringement of fundamental rights, or where facts are not disputed and such party establishes assumption of jurisdiction by an authority without being possessed thereof, or the complaint of violation of natural justice is so pronounced and gross, that a writ court in the judicious exercise of its discretion may choose to interfere. 16. Bearing in mind the above, none of the three points raised by Mr. Sen has appealed to this Bench to .....

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ior 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, con .....

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in answer to the second of the show cause notices in the series dated April 29, 2014. Except for a plea of limitation raised in the first reply, it could not be shown that there was any material difference in the contents of the two replies. The second reply, sans the point of limitation, has been considered in detail and, therefore, there is no gross violation of principle of natural justice. A distinction must always be drawn between a total violation of natural justice (rule of audi alteram .....

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oceeding initiated by the show cause notice dated October 7, 2013 is barred by limitation, such point is available to be taken before the Appellate Tribunal by the petitioner. This Bench need not decide a mixed question of law and fact in a writ petition particularly when an efficacious appellate remedy is available to the petitioner. 19. Regarding the third point raised by Mr. Sen, the same proceeds to challenge only a part of the impugned order. Even if the writ petition is entertained restric .....

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