A demand notice issued beyond the statutory period of limitation constitutes a lack of jurisdiction, rendering the resulting proceedings void and permitting the exercise of writ jurisdiction under Article 226, notwithstanding the availability of an alternative appellate remedy.

BEFORE

HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

ORDER

04.05.2026

Heard Ms. M. L. Gope, learned counsel appearing for the petitioner. Also heard Dr. B. N. Gogoi, learned Standing Counsel, CGST.

2. By way of the present petition under Article 226 of the Constitution of India, the petitioner calls in question, inter alia, the legality and validity of the adjudicating order dated 24.04.2024 passed by the Assistant Commissioner of Central GST and Central Excise, Guwahati Division-II.

3. The foundational facts, shorn of unnecessary details, are that the petitioner, a proprietorship concern engaged in execution of works contract, asserts that the services rendered by it stood exempted under the Mega Exemption Notification issued under the Finance Act, 1994. Notwithstanding such exemption, a Demand-cum-Show Cause Notice dated 11.04.2022 came to be issued for the financial year 2016–2017 under Section 73(1) of the Finance Act, 1994, alleging non-payment of service tax to the tune of Rs. 26,57,349.90/-. The petitioner duly responded to the said notice on 17.11.2023. However, the Adjudicating Authority, by Order-in-Original dated 24.04.2024, proceeded to confirm the demand. Aggrieved thereby, the petitioner has invoked the writ jurisdiction of this Court.

4. Assailing the impugned action, learned counsel for the petitioner submits that the very issuance of the Demand-cum-Show Cause Notice is ex facie barred by limitation as prescribed under Section 73(1) of the Finance Act, 1994. It is contended that once the notice itself is time-barred, the entire proceedings stand vitiated, rendering the adjudicating order a nullity in the eyes of law.

It is further urged that in such circumstances, the existence of an alternative statutory remedy would not operate as a bar to the exercise of writ jurisdiction. Reliance is placed upon the following decisions –

(i) Commissioner of Income Tax and Ors. -Vs- Foramer France (through constituted attorneys), reported in (2003) 185 CTR (SC) 512 [Apex Court].

(ii) Foramer -Vs- Commissioner of Income Tax and Anr, reported in (2001) 247 ITR 436 [Allahabad High Court].

(iii) Union of India & Ors. -Vs- Shree Shubham Syndicate and Ors., Writ Appeal No. 359/2009, decided on 08.11.2012 [Gauhati High Court].

5. Per contra, learned Standing Counsel for the respondent CGST has raised a preliminary objection as to the maintainability, contending that the petitioner has an efficacious alternative remedy of appeal under Section 107 of the CGST Act, 2017, and therefore ought to be relegated to the appellate forum. Reliance is placed upon the decision of the Apex Court in M/s Power Line Air Express Vs. Principal Commissioner of Central Goods and Service Tax & Ors., Special Leave to Appeal (C) No.11496/2026 and the decision of the Delhi High Court in M/s Power Line Air Express Vs. Principal Commissioner of Central Goods and Service Tax & Ors., WP(C) 3328/2026.

6. The rival submissions fall for consideration in a narrow compass. The existence of an alternative remedy is not in dispute. Equally well settled, however, is the principle that such rule is one of self-imposed restraint and not an inflexible bar.

7. The core issue that arises for determination is: whether an adjudicating order founded upon a demand notice which is ex facie barred by limitation can be sustained in law, and whether such defect strikes at the very jurisdiction of the authority so as to warrant interference under Article