Case Note & Summary
The petitioner, Tyresoles India Pvt. Ltd., filed a writ petition challenging an order dated 14 October 2016 passed by the Commissioner of Central Excise and Service Tax, Goa, confirming a service tax demand of ₹186,73,790 and imposing a penalty at 1% of the demanded tax. Additionally, the petitioner challenged the constitutional validity of Section 35F of the Central Excise Act, 1944. The respondents raised a preliminary objection that the petitioner had an alternate and efficacious remedy of appeal under the Act. The court, after hearing both sides, noted that the objection based on alternate remedy had been considered and not accepted in an earlier order dated 17 July 2018. However, upon final hearing, the court observed that the constitutional validity of Section 35F had already been upheld by the Supreme Court and this Court, and there were factual disputes involved which the appellate authority was better suited to resolve. Consequently, the court dismissed the writ petition, relegating the petitioner to avail the alternate remedy of appeal. The court clarified that it had not expressed any opinion on the merits of the case and that the petitioner could raise all contentions before the appellate authority.
Headnote
A) Constitutional Law - Alternate Remedy - Writ Jurisdiction - Availability of efficacious alternate remedy - The court declined to entertain the writ petition on merits as the petitioner had an alternate remedy of appeal under the Central Excise Act, 1944, and the constitutional validity of Section 35F had already been upheld by the Supreme Court and this Court. (Paras 6-8)
B) Service Tax - Pre-deposit - Section 35F Central Excise Act, 1944 - Constitutional validity - The challenge to Section 35F was not entertained as the provision had been upheld by the Apex Court and this Court, and the petitioner was relegated to the appellate remedy. (Paras 3, 6-8)
Issue of Consideration
Whether the writ petition challenging the service tax demand and constitutional validity of Section 35F of the Central Excise Act, 1944 should be entertained despite the availability of an alternate remedy of appeal.
Final Decision
Writ petition dismissed. Petitioner relegated to avail alternate remedy of appeal under the Central Excise Act, 1944. No opinion expressed on merits.
Law Points
- Alternate remedy
- Writ jurisdiction
- Constitutional validity of Section 35F
- Pre-deposit requirement
- Service tax demand
Case Details
2019 LawText (BOM) (01) 116
Writ Petition No. 213 of 2018
M.S. Sonak, Prithviraj K. Chavan
Rajesh Chander Kumar, Prashil Arolkar for Petitioner; Asha Desai for Respondents
Tyresoles India Pvt. Ltd.
Union of India, Ministry of Finance, Commissioner of Customs, Central Excise and Service Tax, Additional Commissioner of Customs, Central Excise and Service Tax
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Nature of Litigation
Writ petition challenging service tax demand order and constitutional validity of Section 35F of Central Excise Act, 1944.
Remedy Sought
Petitioner sought quashing of the order dated 14 October 2016 confirming service tax demand of ₹186,73,790 and penalty, and declaration that Section 35F is unconstitutional.
Filing Reason
Petitioner aggrieved by the Commissioner's order confirming service tax demand and penalty, and by the pre-deposit requirement under Section 35F.
Previous Decisions
Order dated 17 July 2018 rejecting preliminary objection regarding alternate remedy and issuing rule.
Issues
Whether the writ petition should be entertained despite availability of alternate remedy of appeal.
Whether Section 35F of Central Excise Act, 1944 is constitutionally valid.
Submissions/Arguments
Respondents argued that petitioner has alternate remedy of appeal and constitutional validity of Section 35F has been upheld by Supreme Court and this Court.
Petitioner contended that the petition should be heard on merits.
Ratio Decidendi
Where an alternate and efficacious remedy is available, a writ petition should not be entertained, especially when the constitutional validity of the provision has already been upheld and factual disputes exist.
Judgment Excerpts
The challenge in this Petition is to the order dated 14 October 2016, made by the Commissioner of Central Excise and Service Tax, Goa (Commissioner), confirming the demand of ₹186,73,790/- and imposing penalty at the rate of 1% of the demanded service tax.
In addition, the Petitioner has also challenged the constitutional validity of Section 35F of the Central Excise Act, 1944 (said Act).
For all these reasons, Ms. Desai once again submitted that this Petition be dismissed and the Petitioner be relegated to avail of the alternate remedy available under the said Act.
We are satisfied that the Petitioner ought to be relegated to avail of the alternate remedy of instituting an appeal against the impugned order dated 14 October 2016.
Procedural History
Petition filed in 2018 challenging order dated 14 October 2016. On 17 July 2018, preliminary objection regarding alternate remedy was rejected and rule issued. On 10 January 2019, final hearing, court dismissed petition relegating petitioner to appeal.
Acts & Sections
- Central Excise Act, 1944: 35F
