2024 (12) TMI 724 - HC - GST

Bombay HC refuses to hear CGST petition without exhausting statutory appeals first

The Bombay HC declined to entertain a petition challenging an Order-in-Original by the Principal Commissioner of CGST and Central Excise, Pune. The court ... Maintainability of petition - availability of alternative remedy - Challenge to Order-in-Original made by the Principal Commissioner of CGST and Central Excise, Pune - Requirement of pre-deposit - Limited challenge to the notification dated 31 March 2023. Maintainability of petition - availability of alternative remedy - Challenge to Order-in-Original made by the Principal Commissioner of CGST and Central Excise, Pune - HELD THAT:- No case is made out to deviate from the usual practice of requiring the party to exhaust the alternate statutory appeals available to them. Recently, in Oberoi Constructions Ltd. vs. The Union of India & Ors. [2024 (11) TMI 588 - BOMBAY HIGH COURT] the decisions on alternate remedies are surveyed. Reference also made to the trend of attempting to deviate from this practice and take chances by filing petitions in this Court. By adopting the reasoning in the said decision instead of repeating it, this petition is declined to be entertained. On perusal of petition, it is found that a grant of any relief would involve examination into various agreements referred to in the petition itself. This is an exercise best undertaken by the authorities under the Act. Requirement of pre-deposit - HELD THAT:- The same cannot be grounds for not availing of alternate statutory remedies provided by the Statute. There is not even an averment that the petitioner cannot arrange for a pre-deposit amount. The petitioner is a multi-national company, and in any event, based on such ground, there is no question of by-passing the alternate remedy provided by the Statute. Limited challenge to the notification dated 31 March 2023 - HELD THAT:- Should the petitioner not succeed by recourse to the remedy available under the Act, and if occasion arises to challenge the final determination, the petitioner is granted liberty to press the challenge to the notification dated 31 March 2023. All contentions of all parties in this regard are kept open. The petition not entertained - petition disposed off. Issues:Challenge to Order-in-Original dated 29 December 2023 made by the Principal Commissioner of CGST and Central Excise, Pune. Availability of alternate remedy of appeal to the Commissioner (Appeals). Jurisdiction of the impugned order. Consideration of Hon'ble Supreme Court decisions. Interpretation of Northern Operating Systems Private Limited case. Petitioner's contention of pre-deposit. Challenge to notification dated 31 March 2023.Analysis:The petition challenges the Order-in-Original dated 29 December 2023 issued by the Principal Commissioner of CGST and Central Excise, Pune. The petitioner claimed that no other adequate remedy is available, but the court found this assertion misleading as an alternate remedy of appeal to the Commissioner (Appeals) exists. The court noted that the impugned order clearly mentioned this remedy, making the petitioner's claim of no alternative remedy misleading and unappreciated (para 2-4).The petitioner argued that the impugned order was without jurisdiction and a product of non-application of mind, citing the reliance on a Supreme Court decision without appreciating distinguishing features. The respondent contended that the decision was correctly considered and binding. The court held that the usual practice of exhausting alternate statutory appeals should be followed unless exceptional circumstances warrant otherwise (para 5-8).Referring to a recent case, the court emphasized the importance of adhering to the practice of exhausting alternate remedies before approaching the court. The court declined to entertain the petition, stating that no departure from the usual practice was warranted in this case (para 9-10).The court highlighted that the interpretation of the Supreme Court's decision in the Northern Operating Systems Private Limited case could be addressed by the Appellate Authority. The petitioner's contention of pre-deposit was dismissed as insufficient grounds to bypass statutory remedies. The challenge to the notification dated 31 March 2023 was kept open for future consideration if the petitioner does not succeed in the statutory remedy (para 11-14).Despite declining to entertain the petition, the court granted the petitioner the liberty to file an appeal within four weeks. The Appellate Authority was directed to consider the appeal on merits without adverting to the limitation period, acknowledging the petitioner's bona fide pursuit of the petition before the court (para 15-16).In conclusion, the petition was disposed of with liberty granted to the petitioner to pursue the appeal. All contentions of the parties on merits were left open, and no costs were awarded. All concerned were instructed to act on the authenticated copy of the court's order (para 17-18).