Calcutta High Court (Appellete Side)
Sujit Kumar Gauand vs Superintendent Of Cgst & Cx on 29 August, 2023
29.8.2023
ks WPA 19432 of 2023
sl. 18
Sujit Kumar Gauand
Vs
Superintendent of CGST & CX, Range-II, Dankuni
Division, Howrah CGST Commissionerate & Ors.
Mr. Sandip Choraria
... For the Petitioner.
Mr. K.K. Maiti,
Mr. Tapan Bhanja
... For the CGST Authority.
Mr. Debasish Chaudhuri,
Mr. Gautam Dey
... For the UOI.
Heard learned Advocates appearing for the parties.
By this writ petition, petitioner has challenged the
impugned order in original dated 10th February, 2023,
passed by the respondent/ Service Tax Authority
concerned by filing this writ petition on 10th of August,
2023, which is after expiry of six months from the date
of impugned order in original and after the expiry of
period of limitation for filing statutory appeal against
the impugned order in original, which is appealable
order.
Mr. Maiti, learned Advocate appearing for the
respondent/Service Tax Authority concerned opposes
this writ petition on the ground of maintainability of
the same, mainly on the two grounds:
i) That the efficacious and speedy remedy
alternative remedy is available to the
petitioner by way of statutory appeal and;
ii) That the petitioner has approached this writ
court for barred remedy.
In support of his objection of maintainability of
the writ petition in view of availability of alternative
remedy, Mr. Maiti, learned Advocate appearing for
the respondent/Service Tax Authority relies on an
unreported Division Bench's decision of this court
dated 28th April, 2023, in the case of Haldia
Nirman Projects Private Limited and Another vs.
The Additional Director General, Directorate
General of Goods and Services Tax Intelligence,
Kolkata Zonal Unit and Ors. in MAT/705/2023 and
particularly paragraph 5 of the said unreported
decision which is quoted as herein :
"5. Admittedly, the grounds which have been
canvassed before us in this appeal as well as in the
writ petition are not pure questions of law. But
mixed questions of fact and law. Whether the
reasoning given by the adjudicating authority while
considering the issue relating to invoking extended
period of limitation is sufficient or not in the facts
and circumstances cannot be adjudicated by way of
affidavits in a writ petition. Apart from that the
power given to the tribunal under Section 35B of the
Act is wide enough to re-examine the factual
position and the tribunal being the last fact finding
committee can call for records, examine all details
and take a decision in the matter. Therefore, we are
of the view that when such an effective and
efficacious alternative remedy is available under the
Act the appellant should not be allowed to bypass
such remedy more particularly on the grounds
which have been canvassed in the writ petition.
Therefore, we are of the view that the appellant
should avail the alternate remedy under the Act."
Mr. Maiti in support of his contention that
approaching this writ court after the expiry of
statutory period of limitation for filing the appeal,
which has become barred remedy, and that the writ
petition is not maintainable, has relied on a
decision of a Division Bench of this court in the
case of Cal. Electric Supply Corpn. Ltd. & Anr. vs.
Kalavanti Doshi Trust & Ors. reported in 2011(1)
CHN(CAL) 182 particularly paragraph 13 of the
aforesaid judgment which is quoted herein :
"As pointed out by the Supreme Court in the
case of Chattisgarh State Electricity Board vs.
Central Electricity Regulatory Commission & Ors.,
2010(5) SCC page 23), in this type of cases, there is
even no scope of application of Section 5 of the
Limitation Act by taking aid of section 29(2) of the
Limitation Act and as such, it is apparent that on
the date of presentation of the writ-application, the
remedy of the writ petitions was totally barred. It is
now settled law that a Writ Court should not by
invoking jurisdiction under Article 226 of the
Constitution of India revive a barred remedy."
Mr. Choraria, learned Advocate appearing for
the petitioner could not distinguish the aforesaid
two judgments relied upon by Mr. Maiti and he
relies on an earlier unreported Division Bench
decision of this court dated 15th March, 2019 in the
case of M/s. Kesoram Spun Pipes and Foundries
Ltd. vs. Commissioner of Central Excise & Ors.
reported in APO No.391 of 2017, on the proposition
that the writ petition is maintainable challenging
the invoking the extended period of limitation by
the Authority under Section 73 of the Finance Act,
1994.
I have considered the facts and circumstances
of the case as appears from record and submission
of the parties and the judgments relied upon by the
parties. On perusal of the aforesaid impugned
order I find that the same has been passed neither
in contrary to any specific provision of law nor in
violation of principles of natural justice nor there is
any procedural irregularity in passing the aforesaid
impugned order. I also find that the aforesaid
impugned order is a well reasoned speaking and
order and furthermore, this case is fully covered
against the petitioner in view of the aforesaid two
judgments relied upon by Mr. Maiti. The
unreported judgment relied upon by Mr. Choraria
may have been the earlier view of this court but in
view of the view taken in a recent decision, by the
Division Bench of this court which is binding upon
me, I am not inclined to interfere with the
impugned adjudication order and, accordingly this
writ petition being WPA 19432 of 2023 is
dismissed.
( Md. Nizamuddin, J. )
