1 3
Page of
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.65 of 2024
Sri Kashinath Bhattacharjee
......... Petitioner (s)
V E R S U S
Union of India and others
...... Respondent(s)
For Petitioner (s) : Mr. B.N. Majumder, Sr. Advocate,
Mr. S. C. Sen, Advocate,
Mr. B. Paul, Advocate.
For Respondent (s) : Mr. Kohinoor N. Bhattacharyya, G.A.,
Mr. Bidyut Majumder, Deputy, SGI,
Mr. T. Debbarmma, Advocate,
Ms. Kalita Reang, Advocate.
APARESH KUMAR SINGH
HON’BLE THE CHIEF JUSTICE MR.
MR. JUSTICE ARINDAM LODH
HON’BLE
_O_R_D_E_R_
28/02/2024
Heard Mr. B. N. Majumder, learned senior counsel assisted by Mr.
S.C. Sen, learned counsel for the petitioner. Also heard Mr. Bidyut Majumder,
learned Deputy SGI for the Union of India and Mr. T. Debbarma, learned counsel
for the respondent-CGST.
[2] The writ petition was filed within the period of limitation of 60 days
for preferring an appeal. The writ petitioner has assailed the show cause notice
th
dated 24 March, 2022 and the adjudication order-in-original dated 08.12.2023
issued by the Assistant Commissioner, Central Goods and Service Tax, Tripura
Div.-1, Agartala-respondent No.3 whereunder a liability under Section 73(1)
proviso to the Finance Act, 1994 read with Section 174 of the CGST Act, 2017
has been imposed. The adjudicating officer has confirmed the demand of
Rs.48,16,754/- towards service tax, SB Cess and KK Cess dues along with
interest as per Section 75 of the Finance Act, 1994 and a penalty of
Rs.48,16,754/- equivalent to the amount of tax liability under Section 78 of
2 3
Page of
Finance Act, 1994 for the period under dispute. The petitioner has been allowed
to avail the benefit of reduced penalty of 25% of Service Tax demanded if such
service tax and the interest are paid along with 25% of penalty within thirty days
from the date of communication of the order. A penalty of Rs.10,000/- has also
been imposed under Section 77 of the Finance Act, 1994 for violation of Section
70 of the Act.
[3] Apart from other grounds on merit raised by the petitioner, one of
the grounds relates to non service of show cause notice dated 24.03.2022 within
the time prescribed under Section 73(1) proviso to the Act of 1994. The
proceedings relate to the tax period from October, 2016 to March, 2017. Under
Section 73(1) proviso to the Act of 1994, the show cause notice would have been
time barred if it is not served before expiry of 5(five) years period from the
relevant date.
[4] Mr. B.N. Majumder, learned senior counsel for the petitioner, has
drawn the attention of this Court to certain correspondences dated 22.02.2023
(Annexure- 7) and 16.03.2023 (Annexure-8) in support of the submission that
the show cause notice was not served upon the assessee in the proper mode as
prescribed under Section 37(c) of the Central Excise Act, 1944. It is submitted
that the adjudicating authority has in the impugned adjudication order at so many
places referred to the show cause notice dated 24.03.2022 upon the assessee and
the letter dated 06.07.2022 of the assessee seeking 30 days time for submission of
reply in order to substantiate their conclusion that the assessee was in receipt of
notice dated 24.03.2022 before the expiry of the extended period of limitation of
5(five) years. It is submitted that if there was no proper service of show cause
notice, the entire proceeding would be time barred. Therefore, the petitioner has
3 3
Page of
approached this Court as there are jurisdictional errors in initiating proceedings
and imposing a tax liability together with interest and penalty of the equivalent
amount.
[5] Learned counsel for the Union of India and the Central Goods &
Services Tax Department have opposed the prayer and submitted that Section 85
of the Finance Act, 1994 provides for a forum of appeal before the Commissioner
of Appeals.
[6] We have considered the submissions of the learned counsel for the
parties. Since the issue raised herein involves mixed question of fact and law to
be examined from the records of the adjudication proceedings, we are of the
considered view that petitioner has an adequate alternative remedy before the
appellate forum in terms of Section 85 of the Finance Act, 1994. Therefore, we
refrain from exercising our jurisdiction under Article 226 of the Constitution of
India at this stage. Petitioner is at liberty to approach the appellate authority with
due pre-deposit in order to invoke the appellate remedy. In case question of
limitation arises, the appellate authority would consider it sympathetically since
the petitioner was pursuing his remedy before the Court in writ jurisdiction. Let it
be made clear that we have not gone into the merits of the case.
Pending application(s), if any, also stands disposed of.
(ARINDAM LODH), J (APARESH KUMAR SINGH), CJ
Munna S
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.03.05 15:29:42 +05'30'