TMI Blog2019 (6) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... that impugned orders have been passed in violation of NJP - It is certainly nobody's case that the aforesaid alternate remedy by way of an appeal to the Commissioner (Appeals-II) available to the writ petitioner is either ineffectual or not efficacious. This Court is of the considered view that writ petitioner has not made out a case for interfering with the impugned orders in writ jurisdiction on the teeth of an available alternate remedy more so when alternate remedy is in the form of an appeal - the grounds that are being canvassed turn on facts i.e., factual disputes and therefore, this Court is of the considered view that it would be appropriate to relegate the writ petitioner to the aforementioned alternate remedy. This bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the two writ petitions viz., W.P.No.7402 of 2018 pertains to the period April to June 2015, the second of the two writ petitions viz., W.P.No.7403 of 2018 pertains to the period July to September 2015. 5. Both these writ petitions pertain to Service Tax. 6. Writ Petitioner is registered with the concerned Department vide Service Tax Registration No.AACCD6529LSD006 for providing 'Information Technology Software Service'. 7. Crux and gravamen of these two writ petitions is that the writ petitioner sought refund for the aforementioned periods inter alia by placing reliance on Notification No.39/2012-S.T. dated 20.12.2018 being a notification issued by the Central Government in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that writ petitioner has also submitted proof and papers in response to 'show cause notice' ('SCN' for brevity) dated 16.05.2017 which was issued prior to the impugned orders. It was submitted that in the reply to the SCN, writ petitioner has clearly pointed out that SCN issued asking the writ petitioner to show cause as to why the revision claim of the writ petitioner should not be rejected as CENVAT has allegedly be taken by the writ petitioner in ST-3 return as against the condition that no CENVAT credit has been availed on inputs and input services on which rebate has been claimed. 13. Learned counsel for Revenue adverting to the counter affidavit and additional counter affidavit submitted that the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, Hon'ble Supreme Court has also held that though alternate remedy is a rule of discretion, the writ jurisdiction will be exercised for interfering with the orders of this nature only in cases of certain specific exceptions and particularly the exceptions (a) lack of jurisdiction, (b) violation of 'natural justice principles' ('NJP' for brevity) or it should be a case of alternate remedy being ineffectual or not efficacious. 18. In the instant case, it is nobody's case that impugned orders have been passed without jurisdiction. It is also not anybody's case that impugned orders have been passed in violation of NJP. 19. It is certainly nobody's case that the aforesaid altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of public money. Therefore, this being a case of fiscal law and the question turning on factual disputes, this Court considers it appropriate to dispose of the writ petition holding that it is open to the writ petitioner to file an appeal before the aforesaid appellate authority assailing the impugned orders. Though obvious, it is made clear that all questions including the grounds agitated in instant writ petitions are left open for the writ petitioner to be assailed before the appellate authority. It is open to the writ petitioner to seek condonation of delay inter alia by pleading extension of time under Section 14 of Limitation Act and if the writ petitioner chooses to take such a recourse, such applications shall be disposed of on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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