High Court refused writ against tax order due to efficacious alternate appellate remedy despite unserved notice; directed appeal filing within six weeks with limitation condoned on pre-deposit.

JUDGMENT :

1. Heard learned counsel for the parties.

2. The challenge in this petition is to the Order-in-Original dated 31.10.2023 conforming the demand of Rs. 4,89,582/- along with interest, penalty, etc.

3. Learned counsel for the petitioner, on the earlier date, had submitted that this Order-in-Original was never served upon the petitioner. Therefore, we had deferred the hearing in this matter to enable the learned counsel for the respondents to obtain instructions.

4. Mr. P.A.S. Pati, learned counsel for the respondents, on instructions, submitted that although the Order-in-Original was dispatched to the petitioner at the address where the show-cause notice was served, the records show that it was returned unserved. He further stated that if the limitation for filing an appeal against the Order-in-Original is an issue, the petitioner would be granted reasonable time to institute the appeal so that the appeal could be decided on the merits without going into the issue of limitation.

5. Mr. P.P.N. Roy, the learned senior counsel appearing on behalf of the petitioner, however, submitted that this was not a fit case to relegate the petitioner to the alternative remedy of appeal. He pointed out that the impugned order was ex facie without jurisdiction because the issuance of the show-cause notice was barred by limitation; the order was made beyond the prescribed period; and the services rendered by the petitioner were clearly exempted under the 2012 notification. He further submitted that an appeal may not be an efficacious remedy because the petitioner would, when instituting the appeal, be required to deposit 7.5 per cent of the tax demand as a precondition.

6. Mr. Roy relied on the Committee of Management and Another Vrs. Vice-Chancellor and Others , (2009) 2 Supreme Court Cases 630 in support of his contention that where an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction, although there exists an alternate remedy.

7. Mr Pati, learned counsel for the respondents, submitted that, in this case, the extended period of limitation was invoked, there was no delay in passing the impugned order, and, furthermore, no taxes were levied on the exempted services.

8. Although the mere existence of an alternate remedy can never be a bar to this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution, still, this is a self-imposed limitation that, when an alternate and efficacious statutory remedy is provided under the statute, ordinarily, the party must exhaust such remedy before invoking the extraordinary jurisdiction of this Court.

9. Insofar as the exceptions are concerned, we note that, in this matter, the issue of limitation would involve the adjudication of mixed questions of fact and law. Similarly, the issue of whether the services rendered by the petitioner fall within the exempted category would also require adjudication as a factual issue.

10. The matters above are best adjudicated by the specialised authorities constituted under the Act. No argument was made regarding any violation of natural justice.

11. The argument that the requirement of a pre-deposit of 7.5 per cent renders the statutory remedy less efficacious cannot be accepted. Apart from the fact that the demand for service tax in this case is only Rs. 4,89,582/-, this Court cannot be expected to ignore the statutory Scheme.

12.