Mr. Ajay Kumar Upadhayay vs. The Commissioner Cgst And Central Excise

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WP/13335/2019HC Madhya Pradesh09 December 2019Author: HON'BLE SHRI JUSTICE S.C.SHARMA2 pages
For Petitioner: Abhinav Dhanodkar
AI SummaryDismissed

What did the High Court hold?

The High Court held that the writ petition was not maintainable. The Court reasoned that the impugned order passed by the Commissioner was appealable before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) under the relevant provisions of the Central Excise Act, 1944, and the Customs Act, 1962. The Court emphasized that an alternative and equally efficacious remedy was available to the petitioner. Citing its own precedent in Kirit Shrimankar Vs. The Commissioner of CGST & Central Excise, the Court stated that it was not commenting on the merits of the Commissioner's findings. The principle established is that writ petitions will be dismissed on the ground of availability of an alternative statutory remedy, especially when the order is passed by a competent authority after hearing the party. The Court declined admission of the writ petition and granted liberty to the petitioner to avail the statutory remedy of appeal.

What were the facts?

The petitioner, Mr. Ajay Kumar Upadhyay, filed a writ petition before the High Court of Madhya Pradesh, Bench at Indore, challenging an order dated 24/5/2018 passed by the Commissioner, CGST & Central Excise. The Court noted that the impugned order was appealable before the Customs Excise & Services Tax Appellate Tribunal (CESTAT) under Section 35B of the Central Excise Act, 1944, and Section 129A of the Customs Act, 1962. The Court had previously disposed of numerous similar writ petitions challenging the same order by granting liberty to the petitioners to prefer an appeal. In a specific case, Kirit Shrimankar Vs. The Commissioner of CGST & Central Excise, the Court had dismissed the writ petition on the grounds of alternative efficacious remedy.

What were the issues?

1. Whether the writ petition is maintainable before the High Court when an alternative statutory remedy of appeal is available to the petitioner? Assessee's Contention: The petitioner has approached the High Court by way of a writ petition. Revenue's Contention: The order passed by the Commissioner is appealable before the CESTAT under Section 35B of the Central Excise Act, 1944, and Section 129A of the Customs Act, 1962. The High Court has consistently held that writ petitions are not maintainable in such cases and has dismissed similar petitions, directing the petitioners to avail the alternative remedy. The revenue relies on the precedent set in Kirit Shrimankar Vs. The Commissioner of CGST & Central Excise.

Which sections of the Income-tax Act were involved?

Section 35B,Section 129A

AI-generated summary — verify with the full judgment below

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE MR. AJAY KUMAR UPADHYAY VS. COMMISSIONER CGSG & CENTRAL EXCISE AND ANOTHER --- 1 --- INDORE, Dated : 09/12/2019 Parties through their counsel.

The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 24/5/2018 passed by the Commissioner, CGST & Central Excise. The order is certainly an appealable order and appeal lies before the Customs Excise & Services Tax Appellate Tribunal, in Commissioner of CGST & Central Excise (W.P.No. 24164/2018, decided on 27/3/2019) has dismissed the Writ Petition. Paragraph 20 of the aforesaid order reads as under: 20-This Court is not commenting upon the aforesaid issue and upon the findings given by the learned Commissioner, as the petitioner is having an alternative remedy of preferring an appeal before the Customs, Excise & Service Tax Appellate Tribunal. This Court is of the opinion that as the order has been passed by an authority competent under the statute to pass an order and as the order has been passed after hearing the petitioner in detail, the present petition deserves to be dismissed on the ground of availability of alternative equally efficacious remedy. No case for interference is made out in the matter. Accordingly, the writ petition stands dismissed. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE MR. AJAY KUMAR UPADHYAY VS. COMMISSIONER CGSG & CENTRAL EXCISE AND ANOTHER --- 2 --- In the light of the aforesaid, as other Writ Petitions have also been dismissed, the petitioner does have an equally efficacious alternative remedy, the admission is declined with liberty to the petitioner to avail the remedy available under the law. (S. C. SHARMA) J U D G E (SHAILENDRA SHUKLA) J U D G E KR

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