Orissa High Court
Alkesh Sharma vs Union Of India And Others .... Opp. ... on 12 May, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16505 of 2021
Alkesh Sharma .... Petitioner
Mr.D. Rana, Advocate
-versus-
Union of India and others .... Opp. Parties
Mr.R.S. Chimanka, Sr. Standing Counsel
CORAM:
THE CHIEF JUSTICE
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.05.2021
02. 1. This matter is not listed today. On being mentioned by learned counsel for the Petitioner through video conferencing mode, in the Vacation Court, it is taken up by a separate notice.
2. The challenge in the present petition, inter alia, is to notification dated 26th June, 2001 issued by Opposite Party No.2, the Central Board of Indirect Taxes and Customs as well as to Rule 3(1) of the Central Excise Rules, 2002. The further challenge is to the impugned Show Cause Notice (SCN) dated 11th September, 2020 issued by the Additional Director General of Directorate General of Goods and Services Tax Intelligence, Bhubaneswar (Opposite Party No.3) on the ground that it is entirely without jurisdiction. A consequent challenge is to the adjudication order dated 5th February, 2021 passed by the Commissioner, GST and Central Excise Commissionerate, Page 1 of 3 // 2 // Rourkela (Opposite Party No.4). The Petitioner has also sought a declaration that the condition of 7.5% pre-deposit amount to file an appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35F of the Central Excise Act, 1944 is not mandatory.
3. Although the Petitioner has a remedy against the order dated 5th February, 2021 before the CESTAT, learned counsel for the Petitioner relies on the judgment of the Supreme Court in Radha Krishna Industries v. State of Himachal Pradesh 2021 SCC online SC 334 to urge that since three of the four conditions set out in paragraph-28 of the said petition stand satisfied, the present petition is maintainable.
4. Learned counsel for the Petitioner further explains that Opposite Party No.5, Bhushan Power and Steel Limited has also been impleaded as the impugned demand arises from the demand raised against Opposite Party No.5 which is at present under the control of the Resolution Professional appointed by the National Company Law Tribunal.
5. Issue notice.
6. Mr. Chimanka accepts notice on behalf of Opposite Party Nos.1 to 4 and prays for eight weeks time to file reply.
7. Notice be issued to Opposite Party No.5 by Registered/Speed post with A.D. Requisites shall be filed within three working days.
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8. The Court is not inclined to grant any interim relief ex-parte at this stage but is await the completion of service and pleadings before hearing all the parties. It is further clarified that this order would not preclude the Opposite Parties from raising a plea in their replies concerning the maintainability of the writ petition.
9. List for further consideration on 17th August, 2021.
10. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(Dr. S. Muralidhar) Chief Justice (K.R. Mohapatra) Judge KC Bisoi Page 3 of 3