M/S. Coal Mines P. F. Organisation vs The Commissioner Of Central ...
2021 Latest Caselaw 5814 Cal

                                         1




02   24.11.2021                        WPTT 4 of 2020
RP   Ct. No. 16
AN                                           with
                                     IA No. CAN 1 of 2021
                                    (application not found)


                            M/s. Coal Mines P. F. Organisation
                                           vs.
                     The Commissioner of Central Excise & Service Tax,
                                    Ranchi & ors.


                  Mr. Kallol Guha Thakurta
                  Mr. Ashis Kumar Dutta
                  Mr. Sayantan Banerjee
                  Ms. Shreyasi Manna
                                                    ... for the appellant

                  Mr. K. K. Maiti
                                                    ... for the respondents

This writ petition has been filed by the M/s. Coal

Mines Provident Fund Organisation challenging the order

passed by the Customs Excise and Services Tax Appellate

Tribunal, Calcutta (the tribunal) dated 25.02.2020. By

the said order, the tribunal has affirmed the order passed

by the Adjucating Authority namely Commissioner of

Central Excise and Sales Tax, Ranchi dated 22.02.2013

holding that the appellant organization is liable to pay

service tax.

The writ petition has been filed under Article 226

of the Constitution of India and it has been registered by

the Registry of this Court as WPTT 04/2020. From the

order sheets, we find that at the very first instance, the

Division Bench which heard the matter, expressed its

doubt with regard to the maintainability of the writ

petition under Article 226 of the Constitution of India on

the ground that the statutory appeal is provided under

the provisions of Finance Act read with Central Excise

Act. Thereafter, the matter has been adjourned from time

to time for one reason or other. Today before us, learned

counsel for the respondent reiterated the preliminary

objection which, in fact, was raised by the Court itself

stating that in terms of the provisions of Section 35G of

the Central Excise Act read with Section 83 of the Finance

Act, the appeal lies before the High Court and can be

entertained only if the High Court is satisfied that the

case involves substantial question of law and the writ

petition could not have been registered as WPTT 04/2020.

The learned counsel appearing on behalf of the

petitioner submitted that the writ petition is maintainable

as against the order of the tribunal and in support of his

contention placed reliance on a judgment passed in the

case of Principal Commissioner Goods and Services

Tax, Delhi South vs. Premium Real Estate Developers

dated 18.02.2020 in SERTA 18/2019.

We have elaborately heard learned counsel for

the parties and we sustain the preliminary objection

raised by the learned counsel appearing on behalf of the

respondent. We support such conclusion with the

following reasons.

In terms of Section 83 of the Finance Act certain

provisions of the Central Excise Act, 1944 may be

applicable to the services tax regime and one such

provision under Section 35G of the Central Excise Act.

Sub-section 1 of Section 35G states that an appeal shall

lie before the High Court from every order passed in

appeal by the appellate tribunal not being an order

relating to other things, to the determination of any

question having a relation to the rate of duty of excise or

to the value of the goods for purpose of assessment, if the

High Court is satisfied that the case involves a substantial

question of law.

Furthermore, in terms of sub-section 2(a) of

Section 35G of the said Act, the period of limitation for

filing such appeal is 180 days from the date of the order

appealed against is received by the authority or the

Department.

Thus, the appeal provided under Section 35G of

the said Act is not only an efficacious remedy but an

effective remedy. That apart, the appellant cannot

canvass the factual aspects of the matter in an appeal

under Section 35G of the said Act and the High Court will

entertain the appeal only if it is satisfied that the case

involves substantial question of law.

Therefore, we find that there is no justifiable

reason for the writ petitioner to by-pass such statutory

remedy. Furthermore, in terms of the embargo under

Section 35G if the issue pertains to rate of duty or the

value of the goods for the purpose of assessment, then the

appeal lies, before the Hon'ble Supreme Court and High

Court is denude of jurisdiction to entertain the plea

against an order of tribunal deciding the case pertaining

to rate of duty or value of the case. In Premium Real

Estate Developers (Supra), to support the case of the

respondent revenue, the matter was held to be

maintainable only before the Hon'ble Supreme Court.

Thus, for the reasons given hereinabove, the writ

petition cannot be entertained and it is held to be not

maintainable and, accordingly, is rejected.

We give liberty to the appellant to file an appeal

before this court in terms of Section 35G of the Central

Excise Act read with Section 83 of the Finance Act, if so

advised. The Registry is directed to return the original

certified copy of the order passed by the tribunal to the

appellant to enable it to pursue the appeal remedy upon

furnishing a Photostat copy thereof.

We make it clear that we have not gone into the

merits of the case though it was the earnest endeavour of

the learned counsel appearing on behalf of the petitioner

to convince us that the tribunal has passed an ex parte

order without affording any reasonable opportunity of

hearing to the P. F. organization and also refused to recall

the ex parte order inspite of an application having been

filed. We leave it open to the writ petitioner to agitate all

these issues in the appeal, if so advised.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)