The Bombay High Court dismissed a writ petition directing to avail statutory appeal and observed that an Adjudicating Officer has jurisdiction to decide whether a particular activity attracts service tax.
By the writ petition filed under Article 226 of the Constitution of India, the Petitioner, Rattan India Power Limited, sought to quash and set aside the order passed by Respondent No. 3, the Principal Commissioner of Goods and Service Tax and Central Excise. This order levied service tax on the amount paid by the Petitioner to the State of Maharashtra for irrigation restoration charges.
The Respondents have put forth a preliminary contention that the writ petition should not be entertained. They argue that the petitioner has an alternative and efficacious remedy of appeal to the Customs Excise and Service Tax Appellate Tribunal and that no exceptional circumstances exist to justify interference in writ jurisdiction.
The primary issue to be decided is whether the writ petition should be entertained, given the availability of the alternative remedy of appeal, as argued by the Respondents.
The Two-Judge Bench comprising Justices Nitin Jamdar and Justice Abhay Ahuja observed that “The Adjudicating Officer had the jurisdiction to decide whether a particular activity attracts service tax or not, and the Petitioner has the option to file a statutory appeal to the Appellate Tribunal where the Petitioner can present all of its contentions. “
“There is no reason why the Petitioner cannot avail of the statutory remedy of appeal. Considering all the circumstances, we find merit and uphold the preliminary objection raised by the Respondents that the writ petition should not be entertained” the Court concluded.
The Finance Act 1994 provided complete machinery to challenge the order of the assessment in appeals, the last one being before the Supreme Court. Further, even assuming that the first appeal would lie in this court and not the Supreme court, this is not a case where writ jurisdiction needs to be entertained when the petitioner has a remedy of a substantive appeal.
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