(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, calling for the records relating to the order passed by the 1st respondent in File C.No.V/ST/15/53/2012-Adjn.No.11/Commr/ST/2016, dated 14.07.2016 and quash the same.)
Challenging the order-in-original passed by the Commissioner of Central Excise, confirming the demand amount of Rs.1,21,42,125/- (service tax Rs.1,17,88,470/-, Primary Education Cess Rs.2,35,770 and Secondary and Higher Education Cess Rs.1,17,885/-) under Section 73 (2) of the Finance Act, 1994 and imposing penalty of Rs.10,000/- under Section 77(2) of the Finance Act, 1994 for non assessing their correct service tax liability in the statutory returns and imposing a penalty of Rs.1,21,42,125/- under Section 78 of the Finance Act, 1994, the petitioner has filed this writ petition.
2. Admittedly, against the order passed by the first respondent, there is an appeal remedy available before the CESTAT. The appellate remedy provided under the Act before the CESTAT is not only an efficacious but an effective remedy and the CESTAT is entitled to appreciate and re-appreciate the facts and hence, without exhausting such remedy, the petitioner cannot maintain this writ petition under Article 226 of the Constitution of India.
3. Learned Senior Counsel appearing for the petitioner vehemently contended that the first respondent without affording sufficient opportunity and without furnishing required documents to submit his reply to the show cause notice, passed the impugned order in violation of principles of natural justice. He would further contend that the demand made by them was barred by limitation and the extended period provided under Section 73(1) of the Finance Act, 1994 cannot be invoked by the first respondent.
4. From the perusal of records, it is seen that the first respondent has clearly explained in paragraph 4 of the impugned order regarding service of notice and furnishing of documents which was disputed by the learned Senior Counsel for the petitioner. However, it is open to the petitioner to raise the issues relating to limitation and mala fide act of the respondents etc., before the Appellate Authority. Since disputed question of facts are to be examined while considering the validity and correctness of the impugned order, this Court is not in a position to entertain this writ petition. Therefore, this Court is of the view that the petitioner should exhaust the appeal remedy available under the Act and no grounds have been made out by the petitioner to justify in bypassing the remedy before the CESTAT.
5. In the above circumstances, the writ petition is dismissed giving liberty to the petitioner to approach the CESTAT for availing appellate remedy, if he is so advised. No costs. W.M.P(MD)No.13653 of 2016 is closed.