The Joint Commissioner of GST & Central Excise, The Assistant Commissioner of GST & Central Excise Versus M/s Cheran Cements Limited (DEFUNCT)
Service Tax
2018 (6) TMI 1304 – MADRAS HIGH COURT – 2018 (361) E.L.T. 962 (Mad.) , [2019] 69 G S.T.R. 138 (Mad)
MADRAS HIGH COURT – HC
Dated:- 18-6-2018
W.A.(MD)No.709 of 2018, C.M.P(MD)No.4075 of 2018
Service Tax
K. Ravichandrabaabu And T. Krishnavalli, JJ.
For the Appellants : Mr.B.Vijay Karthikeyan
For the Respondent : Mr.S.Karunakar for Mrs.S.Mahalakshmi
JUDGMENT
[ Judgment of the Court was delivered by K. Ravichandrabaabu, J. ]
This writ appeal is directed against the interim order of stay granted by the writ Court at the time of hearing the writ petition for admission, subject to a condition that the writ petitioner pays a sum of Rs. 2,50,000/- within a period of three weeks.
2.The appellants are the respondents before the writ Court. The respondent before us, as the writ petitioner, challenged the Order-in- Ori
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it petitioner was already under attachment as early as in the year 2011 itself and consequent upon such attachment, e-auction was conducted and third party successful bidder has also emerged on 16.03.2018. He further submitted that a delivery order has been issued in the name of the successful bidder on 20.03.2018. Thus, he submitted that suppressing all those facts, the writ petition has been filed before this Court only to get an interim order, so as to prolong the proceedings one way or other. He further submitted that when the writ petition itself ought not to have been entertained, granting of interim order itself is erroneous. In support of such submission, he relied on a recent decision of the Apex Court reported in (2018)3 SCC 85 [State Bank of Travancore vs. Mathew K.C].
4.Per contra, the learned counsel appearing for the respondent/ writ petitioner submitted that as the company itself was closed as early as in the year 2008 much earlier to the order of the adjudicating autho
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s) and such appeal shall also to be filed within the prescribed period of limitation. It is the case of the writ petitioner that they are not aware of the order passed by the adjudicating authority. However, they have chosen to keep quit for seven years and suddenly approached this Court now and filed the writ petition, when the respondents brought the properties of the writ petitioner for public auction.
8.Though it is contended by the learned counsel for the writ petitioner that the petitioner was not aware of the order impugned in the writ petition, we are not inclined to accept such contention. The averment made at paragraph 9 of the affidavit would only indicate that such order was only not brought to the knowledge of the higher management and not that the said order was not at all within the knowledge of the writ petitioner. In fact, in the very same paragraph, it is stated that the impugned order itself could not be traced and with great difficulty, they have managed to find ou
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t to challenge before the appropriate forum immediately, the writ petitioner cannot be heard to say that due to financial crunch, the challenge was not made immediately. Therefore, we find force in the submission made by the learned senior standing counsel for the appellants with regard to the very maintainability of the writ petition firstly on the ground of delay. Even otherwise, it is well settled that when an effective alternative remedy is available under the relevant statute, filing of the writ petition cannot be entertained, more particularly, in fiscal matters. At this juncture, it is useful to refer to the following decisions:-
1) M/s.Nivaram Pharma Private Limited rep.by its Director Sardarmal M.Chordia, Madras -vs- The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras and others reported in (2005) 2 MLJ 246(DB)
2) United Bank of India -vs- Satyawati Tondon and others reported in (2010) 8 SCC 110
3) Raj Kumar Shivhare -vs- Assistant Di
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follows:-
“16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex- parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payer's expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford t
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oner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.”
17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter-affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.”
11.Considering the above stated law laid down by t
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