Court dismissed writ petition questioning classification of service under Service Tax. Court held statutory appeal remedy existed under Customs/Excise Acts, rejecting claim of no alternative redressal.
Writ petition dismissed; petitioner permitted to withdraw original order after submitting attested copy.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/09/2011
C O R A M
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
Writ Petition (MD)No.10643 of 2011
S.G.Mathiyalagan ... Petitioner
Vs
1.The Joint Commissioner
O/o.The Commissioner of Central Excise,
& Service Tax, 1 Williams Road, Cantonment, Tiruchirappalli.
2.M/s.Bharat Sanchar Nigam Limited,
(A Government of India Enterprises) Rep. By its General Manager, Thanjavur. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the case on the files of the first respondent in proceedings dated 27.06.2011 in C.No.V/ST/15/60/2010-Cx,Adj., quash the same and direct the respondent to pass the orders in the light of the circular No.123/5/2010-TRU dated 24.05.2010 issued by the Central Board of Excise & Customs.
For petitioner ...Mr.T.Bashyam For respondents ...No appearance
O R D E R
The order in original No.8/2011–ST Dated 27.06.2011 passed by the Joint Commissioner, Commissionerate of Central Excise and Service Tax, Tiruchirappalli, is challenged on the ground that the authority has failed to take into consideration certain clarifications on the classification of service provided by the petitioner.
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Commissionerate of Central Excise and Service Tax, Trichy, has failed to consider the Customs Circular No.123/5/2010-TRU, dated 24.05.2010. At paragraph No.13, of the supporting affidavit, the petitioner has further contended that there is no statutory remedy available to the petitioner and therefore, he is constrained to seek the remedy under Article 226 of the Constitution of India. The above said contention is not correct, as there is a statutory remedy available to the petitioner under the Customs Act. Any person aggrieved by an order may file an appeal before the Commissionerate of Central Excise and Service Tax, Tiruchirappalli, within three months from the date on which the order in original, dated 27.06.2011, has been communicated to the person to whom it is addressed. It is further stated that the appeal including the statement of facts and the grounds of appeal shall be filed in duplicate with the order of original and pending disposal of the appeal, the appellant shall deposit the duty demanded or the penalty levied therein and produce proof of such payment along with the appeal, failing which, the appeal would be rejected for non compliance of the provisions under Section 129 of the Customs Act, 1962/35F Central Excise Act, 1944.
https://hcservices.ecourts.gov.in/hcservices/ 5. Reading of the impugned order reflects application of mind on the part of the first respondent with reference to the issue and reasons have also been assigned. The order in original cannot be said to be a non speaking order. It is needless to state that both the Apex Court as well as this Court have consistently held in revenue matters, the Court should not
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be slow and entertain the writ petition, unless, it is passed without jurisdiction and available, when an alternative remedy is available. Further, there is a statutory remedy available to the petitioner. In such circumstances, this Court is not inclined to accept the contention of the petitioner that there is no statutory remedy available under the statute and hence the petitioner has been constrained to prefer this writ petition.
Sd/-
Assistant Registrar(Crl.Side)
/True Copy/
Sub-Assistant Registrar
To
1.The Joint Commissioner
O/o.The Commissioner of Central Excise,
& Service Tax, 1 Williams Road,
Cantonment, Tiruchirappalli.
2.M/s.Bharat Sanchar Nigam Limited,
(A Government of India Enterprises)
Rep. By its General Manager, Thanjavur
+One CC to Mr.R.Aravindan, Advocate, SR.No.31960
+One cc to Mr.T.Bashyam, Advocate, SR.No.32056
RR
rl/5c- 10.10.2011
Writ Petition No.10643 of 2011 and M.P.No.1 of 2011
19.09.2011
1 issue framed by the court
Whether the petitioner was correctly denied alternative statutory remedy under Customs/Excise Acts to maintain a writ petition.
4 provisions across 4 enactments
S.G.Mathiyalagan
The Joint Commissioner, O/o The Commissioner of Central Excise, & Service Tax, 1 Williams Road, Cantonment, Tiruchirappalli
M/s.Bharat Sanchar Nigam Limited
M.Justice S.Manikumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
