Rajasthan High Court - Jodhpur

M/S Shri Kanhad Dev Songara Krishi Upaj ... vs Commissioner Of Central Excise on 9 September, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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         HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR
             D.B. Civil Writ Petition No. 19168/2024

M/s Shri Kanhad Dev Songara Krishi Upaj Mandi Samiti, District
Jalore, Rajasthan, Through Its Secretary And Authorized
Signatory Kalyan Singh Bhati S/o Sh Kunwar Singh Aged About
36 Years, Resident Of Kanhad Dev Songara Krishi Upaj Mandi
Samiti, Jalore.
                                                ----Petitioner
                           Versus
Commissioner Of Central Excise, Central Excise Commissioner,
Jodhpur.
                                              ----Respondent


For Petitioner(s)              :   Mr. Sharad Kothari with
                                   Mr. Pranjul Mehta
For Respondent(s)              :   Mr. Rajvendra Sarswat with
                                   Mr. Rishabh Dadhich


     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
             HON'BLE MR. JUSTICE SANDEEP TANEJA

                                   JUDGMENT

Reserved on                :       27/08/2025
Pronounced on              :       09/09/2025

(PER HON'BLE SANDEEP TANEJA, J.)

1. Petitioner is aggrieved by the order dated 23.01.2024 passed

by the Customs, Excise and Service Tax Appellate Tribunal, New

Delhi (for short 'the Tribunal'), whereby the Tribunal dismissed the

appeal filed by petitioner. Petitioner is further aggrieved by the

order dated 26.07.2024 whereby the Tribunal dismissed the

application seeking restoration of the appeal.

2. Brief facts of the case are that petitioner is a 'Mandi Yard'

established by the State Government pursuant to the powers

conferred upon the State Government under Section 4 of the

Rajasthan Agriculture Produce Markets Act, 1961. Petitioner earns

its income, inter alia, from rent/lease charges of shops/go-downs

within the premises of the Mandi Samiti (Market Area).

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2.1 The Additional Commissioner, Central Excise, Jaipur-II issued

a show cause notice dated 11.10.2012 to the petitioner to show

cause as to why service tax amounting to Rs.27,33,691/- be not

paid by petitioner in terms of Section 73(1) of the Finance Act,

1994 along with interest and penalty on the amount of

Rs.2,54,15,122/- received by petitioner during April, 2007 to

March, 2012.

2.2 Petitioner furnished a detailed reply to the said show cause

notice.

2.3 After granting personal hearing to petitioner, the Additional

Commissioner passed the Order in Original dated 07.11.2013

confirming the demand of service tax of Rs.27,33,691/- along with

interest and penalty.

2.4 Being aggrieved by the Order in Original, petitioner filed an

appeal before the Commissioner (Appeals), Customs, Central

Excise & Service Tax, Jaipur, which came to be dismissed by order

dated 09.12.2016.

2.5 Being aggrieved by the aforesaid order, petitioner filed an

appeal before the Tribunal. The case was listed on 23.01.2024,

however, when there was no representation on behalf of petitioner,

the Tribunal while relying upon a judgment passed by the Hon'ble

Supreme Court in the case of Krishi Upaj Mandi Samiti Vs.

Commissioner of C.Ex. & S.T., Alwar reported in 2022 (58) GSTL

129 (SC) dismissed the appeal of the petitioner. Petitioner

thereafter filed an application for restoration of the appeal.

However, the Tribunal dismissed the said application vide order

dated 26.07.2024.

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2.6 Being aggrieved by the aforesaid two orders dated

23.01.2024 and 26.07.2024, petitioner has preferred the instant

writ petition.

3. Learned counsel for petitioner has submitted that petitioner

could not be effectively represented before the Tribunal due to

bonafide miscommunication between petitioner's local counsel and

Delhi based counsel. Counsel has further submitted that the

Tribunal has erred in dismissing the appeal of petitioner solely on

the contention of representative of respondent-department that

the matter was covered by the judgment of the Hon'ble Supreme

Court in the case of Krishi Upaj Mandi Samiti (supra) whereas

petitioner had raised various grounds in the appeal.

3.1 Counsel has also submitted that the Tribunal also erred in

rejecting application for restoration of the appeal without

appreciating that non-appearance on behalf of petitioner was not

intentional. It is further submitted that in case of bonafide

confusion of advocates/ authorised representatives, the concerned

party should be granted a chance of hearing before any adverse

judgment is passed.

3.2 On merits of the matter, counsel for petitioner has

submitted that receival of rent towards long term renewable

leases was akin to sales and not the service, therefore, service tax

was not payable on the amount received by petitioner.

4. Per contra, learned counsel for respondent has submitted

that petitioner has an efficacious alternative remedy of filing

appeal before this Court under Section 35-G of the Central Excise

Act, 1944. It is also submitted that petitioner was aware of the

date of hearing as in compliance of order dated 17.05.2023

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passed by the Tribunal, the Department vide letter dated

23.05.2023 informed petitioner about the date of hearing of

appeal on 27.07.2023. The appeal was thereafter listed for

hearing on 27.07.2023, 27.09.2023 and 30.11.2023, however,

petitioner did not appear. The appeal was lastly listed on

23.01.2024 and since petitioner did not appear on the said date as

well, the Tribunal heard the appeal on merits. As the issue

involved in the appeal was no more res integra, the same was

decided on the basis of the judgment passed by the Hon'ble

Supreme Court in the case of Krishi Upaj Mandi Samiti (supra).

5. Heard learned counsels for the parties and perused the

material available on record.

6. This Court finds that petitioner has a remedy of appeal under

the Central Excise Act, 1944.

7. The Hon'ble Supreme Court in the case of Whirlpool

Corporation Vs. Registrar of Trade Marks, Mumbai and

Others reported in (1998) 8 SCC 1 has held that High Court

would not normally exercise its jurisdiction if effective &

efficacious remedy is available. However, the Hon'ble Supreme

Court also laid down the exceptional circumstances where the

alternative remedy would not operate as an absolute bar. The

relevant Para reads as under :

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in

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at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

7.1 The Hon'ble Supreme Court in the case of Commissioner of

Income Tax and Others Vs. Chhabil Dass Agarwal reported in

(2014) 1 SCC 603, has held that if an effective alternative

remedy is available to the aggrieved person, a writ petition should

not be entertained ignoring the statutory dispensation. The

relevant Para reads as under :

"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

7.2 The Hon'ble Supreme Court also in the case of

Commissioner of Central Excise, Haldia Vs. Krishna Wax

Private Limited reported in (2020) 12 SCC 572 held that Excise

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Law is a complete Code in itself in order to seek redressal in

excise matters. The relevant Para reads as under :

"14. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a writ court to entertain a petition under Article 226 of the Constitution and that the person concerned must first raise all the objections before the authority who had issued a show-cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India v. Guwahati Carbon Ltd., it was concluded: "The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution", while in Malladi Drugs & Pharma Ltd. v. Union of India, it was observed:

"... The High Court, has, by the impugned judgment held that the appellant should first raise all the objections before the Authority who have issued the show-cause notice and in case any adverse order is passed against the appellant, then liberty has been granted to approach the High Court...

...in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice."

8. In the instant case, though the reason given by petitioner

for non-appearance on dates of hearing is bonafide

miscommunication between petitioner's local counsel and Delhi

based counsel, however, petitioner has not been able to refute the

fact that in compliance of the order dated 17.05.2023 passed by

the Tribunal, the Department vide letter dated 23.05.2023

informed the petitioner about hearing of the appeal on

27.07.2023.

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9. Respondent in its reply has specifically averred that the

department vide letter dated 23.05.2023 informed the date of

hearing to the petitioner. This fact has remained uncontroverted as

no rejoinder has been filed by petitioner. It can, therefore, be

safely concluded that petitioner was duly intimated with regard to

the date of hearing and despite the said intimation, petitioner

failed to appear on the hearing dates. Otherwise also, petitioner

was required to be vigilant about the proceedings pending before

the Tribunal. In these circumstances, it cannot be said that

petitioner did not have proper opportunity to represent its case

before the Tribunal.

10. This Court does not find merit in the argument of learned

counsel for petitioner that the application for restoration of appeal

was erroneously rejected by the Tribunal. The Tribunal in its order

dated 26.07.2024 has specifically recorded that petitioner was

duly served with regard to the date of hearing of the matter;

petitioner failed to pursue the proceedings diligently; and since

the appeal was decided on merits, there was no reason to restore

the same for rehearing. This Court does not find any error in the

said order.

11. Apart from the above, the argument of petitioner is also

liable to be rejected in view of Rule 20 of the Customs, Excise and

Service Tax Appellate Tribunal (Procedure) Rules, 1982 which

reads as under :

"RULE 20. Action on appeal for appellant's default.- Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal

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may, in its discretion, either dismiss the appeal for default or hear and decide it on merits :

Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal."

(Emphasis Supplied)

A bare perusal of the above Rule reveals that the Tribunal

has discretion to either dismiss the appeal for default or hear and

decide the same on merits, in case the appellant does not appear

on the date of hearing. However, the proviso to the rule provides

that the Tribunal is empowered to set aside the dismissal and

restore the appeal only if the appeal has been dismissed for

default. In the instant case, undeniably by order dated

23.01.2024, the appeal was decided on merits and was not

dismissed for default. In the opinion of this Court, the rejection of

application for restoration is in conformity with the above Rule.

12. In view of the above discussion and also applying the ratio