By TIOL News Service

HYDERABAD, OCT 07, 2014: THIS case as noted by the High Court has an interesting background. This challenges the the order, dated 18.06.2014 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad.

The writ petitioner approached the High Court earlier seeking the relief to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring as arbitrary, illegal, indiscrete, high handed, discriminatory and affront to doctrine of legitimate expectations as well as doctrine of equity, fairness & reasonableness, the notices issued to the petitioner and its customers by the Central Excise Authorities proposing to recover the arrears.

The High Court by an order dated 07.10.2013 held that an efficacious remedy of appeal is provided which can be pursued by any person aggrieved by any decision passed under the Act. Therefore, without exhausting the alternative remedy of appeal provided under the Act the petitioner cannot straight away invoke the jurisdiction of this Court under Article 226 of the Constitution of India.

Based on this judgement, the petitioner filed a regular appeal with the Commissioner (Appeals). As the Commissioner (Appeals) was not passing any order, the petitioner again approached the High Court. The High Court directed the Commissioner (Appeals) to deal with and dispose the application.

In this background, the writ petitioner requested the Commissioner to decide the application, and without deciding the same on merit, the Commissioner passed an order dismissing the appeal holding the appeal does not lie. It is appropriate to record relevant portion of the findings of the Commissioner as follows:

"The department's counsel opined that, "no appeal lies against notices issued under Section 11 of the Central Excise Act since it is not an order as contemplated under Section 35 of the Central Excise Act"."

The petitioner is before the High Court for the third time.

This time the High Court observed,

The Commissioner should not have expressed the opinion differently to that of the opinion given by this Court. When the High Court has in clear terms ruled that appeal lies, the Commissioner under Article 227 of the Constitution of India, had no option, but to proceed with the hearing of the appeal on merit. According to us, perhaps, this aspect escaped the notice of Commissioner. He simply accepted misplaced opinion of Department's Representative.

The High Court set aside the order and restored the appeal for hearing. The Court also directed that the appeal should be heard out without wasting time in dealing with the matter, and be disposed of within a period of two months from the date of communication of this order.

Compliance report is to be submitted to the Registry concerned after expiry of two months.

(See 2014-TIOL-1744-HC-AP-CX)