KEC INTERNATIONAL LTD. Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) THIS is an application preferred by Revenue (respondent in the substantive appeal), seeking review/rectification of the order dated 19 -8 -2013 passed in COD Application No. 58150/2013, whereby delay of nine days was condoned, for reasons recorded therein. The assessee filed the appeal with a delay of nine days. The application seeking, condonation pleaded that against the (impugned) adjudication order dated 31 -1 -2013. It had initially preferred Writ Petition No. 10915/2013 before the Punjab and Haryana High Court on 13 -5 -2013; the writ petition was disposed of on 21 -5 -2013 relegating the assessee to pursue the alternative remedy of an appeal to this Tribunal; and the appeal was filed on the very next day i.e. on 22 -5 -2013. The delay of nine days had occurred, in the circumstances. Tribunal found satisfactory cause pleaded for the delay viz. invocation by the assessee, of the constitutional jurisdiction of the High Court. The delay of 9 days was therefore condoned.

(2.) REVENUE now pleads that in view of several decisions of the Supreme Court including Ketan V. Parekh v. Special Director, Directorate of Enforcement 012 (275) E.L.T. 3 (S.C.), Ambica Industries v. CCE : 2007 (213) E.L.T. 323 (S.C.) and in CIT & Ors. v. Chhabil Dass Agarwal - 2013 -TIOL -40 -SC -IT, "forum shopping" cannot be permitted", and the Tribunal erred in condoning the delay. According to Revenue (para 5 of the Misc. application), the assessee should have filed an appeal before this Tribunal within the period of limitation, pursuing an "alternate remedy" before the High Court amounts to abuse of the process of law and such deviant conduct disentitles the assessee to the relief of condonation of delay. According to Revenue delay was "inadvertently" condoned, failing to notice several "leading decisions of the Supreme Court" expounding the view that the practice of non -exhaustion of an efficacious alternate remedy before the CESTAT and pursuing litigation before a High Court amounts to abuse of the process of law, commonly known as forum shopping.

(3.) IN Chhabil Dass Agarwal (supra), the Apex Court considered the issue whether the High Court was justified in interfering with an order passed by the assessing authority under Section 148 of the Income -tax Act, 1961 (exercising jurisdiction under Article 226) when a statutory appellate remedy was available. After elaborate analyses of precedents on the subject, the Supreme Court in para 19 reiterated the circumstances which justify exercise of discretion to entertain judicial review even when an alternative appellate remedy is available; and the exceptions to the normal principle that alternative remedy should be pursued rather than recourse to judicial review. The Court in the facts of the particular case concluded that the respondents/assessee's Writ Petition ought not to have been entertained. While allowing the appeal filed by the Revenue, the Supreme Court granted liberty to the assessee to prefer an appeal against orders of reassessment passed under Section 148, within the time specified. Clearly therefore, the Supreme Court did not infer that the filing of a Writ Petition against the reassessment orders amounted to abuse of the process of law or forum shopping. Had that been the inference, the Supreme Court would not perhaps have granted liberty to the assessee to prefer statutory appeal and granted time to do so, beyond the normal period of limitation.