TMI Blog2017 (3) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... icy. In the present case, it cannot be said that the authorities had acted without any basis in issuing a SCN. The SCN was issued on the basis of materials as narrated above. It is detailed. The department has valid reasons to issue the same. The charges are based on cogent materials and evidence. It does not violate any law. The petitioners have not been able to establish that, the department had violated any law in issuing the SCN or that the SCN contains any charges which is contrary to any law. Petition dismissed - decided against petitioner. - W.P. No. 26336 (W) of 2016 - - - Dated:- 8-3-2017 - Debangsu Basak, J. For the Petitioners : Mr. J.K. Mittal, Advocate Mr. Prantik Garai, Advocate For the Respondent : Mr. Somnath Ganguli, Advocate Mr. Bhaskar Prasad Banerjee, Advocate JUDGMENT Debangsu Basak, J. The petitioners assail an order dated August 18, 2016 passed by the Principal Commissioner of Service Tax-1, Kolkata. Learned Advocate appearing for the petitioners contends that, despite the writ petitioners having a statutory right of appeal, a writ petition is maintainable against the impugned order. He relies upon 2016 (43) S.T.R page 482 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has no jurisdiction to impose penalty on the Directors of the first petitioner being the second and the third petitioner. He questions the ability of the department to institute any criminal proceeding against the petitioners. He submits that, an order passed under Section 9AA of the Central Excise Act, 1944 is not appealable. Referring to the Order dated March 10, 2016, learned Advocate for the petitioners submits that, the department had dropped a demand of ₹ 1.27 Crores and, thereafter, by the impugned order dated August 18, 2016 confirmed such demand. According to him, the authority does not have a power of review. Essentially a review was done on the earlier order. He questions the findings in this regard in the impugned order. He submits that, the petitioners have been put in worse off position because the petitioners had filed a writ petition. The petitioners cannot be put in a worse off position in their own appeal and relies upon 2016 (340) E.L.T. page 6 (Mad.) (Servo Packaging Ltd. v. CESTAT, Chennai) and 2015 (322) E.L.T. page 561 (S.C.) (Jaswal Neco Ltd. v. Commissioner of Customs, Vishakhapatnam) in support of such contention. Referring to the show- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record. The issue of maintainability of the writ petition is required to be considered first. Finding that the impugned order is appealable, in the course of hearing I had inquired of the learned Advocate for the petitioners that, whether the petitioners are willing to prefer an appeal therefrom. I had also indicated to the petitioners that, in the event the petitioners wishes to proceed with the present writ petition, then the impugned order has to be adjudged on the basis of the scope of inquiry that is available to a Writ Court. In answer to such query the learned Advocate for the petitioners submits that, the petitioners are assailing the impugned order before a Writ court on the parameters available to a Writ Court to undertake such exercise. The merits of the matter are also dealt with on behalf of the petitioners. Existence of a statutory alternative remedy is not a complete bar to the maintainability of a writ petition. The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion as noted in Sourav Ganguly (supra). A writ petition is maintainable against an order in spite of existence of an alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal hearing was made in such writing. A further reply was submitted by the petitioners on May 26, 2015. The petitioners submitted two written submissions on July 25, 2015 and August 24, 2015. The initial order in original was passed on March 10, 2016 ex parte as the adjudicating authority had found that, the petitioners after being afforded five opportunities of personal hearing over a period of seven months the assessee remained evasive throughout such period. Being aggrieved by such order in original, the petitioners had filed a writ petition being W.P. No. 9224 (W) of 2016. The order in original was set aside conditionally upon a pre-deposit in order to afford the petitioners another opportunity of hearing by the Order dated May 18, 2016. The order was conditional upon the petitioners depositing a sum of ₹ 1 Crore. The petitioners had deposited the sum of ₹ 1 Crore on June 9, 2016. The petitioners having complied with the condition precedent, a further hearing was afforded to the petitioners on July 14, 2016. The authorized representatives had appeared on such date and have made submissions as noted in the impugned order. The petitioners had also submitted a Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that, an assessee cannot be put in a worse off position for filing an appeal unless there is a cross appeal by the department. Jaswal Neco Ltd. (supra) is of similar view. In the present case, the question of the petitioners being put into a worse off condition by filing the first writ petition does not arise. The first writ petition was disposed of permitting a right of hearing to the petitioners. The earlier order was set aside. The petitioners were heard. The petitioners have not substantiated that any portion of the impugned order is perverse. General Manager Food Corporation of India (supra) is of the view that, where Section 73A of the Finance Act, 1994 is sought to be invoked, the same has to be stated in the show-cause notice. In such case, an allegation under Section 87 of the Finance Act, 1994 was made in the show-cause notice. The allegation in the show-cause notice relates to non-payment of Service Tax. Violation of Section 73A is noted therein. The adjudicating authority notes the difference between Section 73A and Section 73. The Tribunal in Checkmate Industries Services (supra) is of the view that, there are substantial differences between the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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