TaxTMI 
TaxTMI 
2010 (8) TMI 861
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....-product. Under the first contract, the petitioner is required to provide one hydraulic excavator to facilitate loading operations for the purpose of lifting phospo gypsum from the pond in contractee premises and dump the same into the trucks of third party buyers identified by the manufacturer. Under the second contract, the petitioner is required to lift phospo gypsum in the pond, transport and dump it to the railway siding within the factory premises and when the railway rakes are ready, the gypsum has to be loaded into the wagons by means of wheel loaders owned and manned by the petitioner. Indisputably the contracts are being extended from time to time. The petitioner is a registered dealer with the second respondent, who issued notice....
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....ecial Standing Counsel for Commercial Taxes placing reliance on State of U.P. v. Anil Kumar Ramesh Chandra Glass Works [2006] 145 STC 656; [2005] 11 SCC 451 submits that when the authority does not suffer from inherent lack of jurisdiction, the writ petition is not maintainable and the petitioner can avail of all remedies. It is axiomatic that, ordinarily, a writ petition against a show-cause notice would not be entertained. The power of judicial review is exercised under article 226 of the Constitution of India in relation to a decision making process. At the stage of show-cause notice, there is no decision as such and, therefore, except in extraordinarily peculiar cases, writ jurisdiction is not entertained. We may refer to precedents ....
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.... provides for adjudicatory forum and also right of first appeal to the Collector and second appeal to the CEGAT, exercise of jurisdiction under article 226 of the Constitution is not warranted. In such cases, the exercise of jurisdiction under article 226 would amount to by-passing the statutory remedy provided under the Central Excises and Salt Act, which is not just and proper. . ." In Union of India v. Bajaj Tempo Limited [1998] 9 SCC 281; [1997] 94 ELT 285 (SC), the Supreme Court laid down as under: ". . . The appropriate course for the assessee in each case was to reply to the show-cause notice enabling the authorities to record their findings of fact in each case and then if necessary, the matter should have been proceeded to th....
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....t petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. . ." (emphasis Here italicised. supplied) In Commissioner of Customs & Central Excise v. Charminar Nonwovens Ltd. [2004] 136 STC 356; [2004] 167 ELT 372 (SC); [2004] 5 SCC 125, the Supreme Court observed as under (page 358 in STC): "The matter relating to commodity classification whether it falls under one heading or the oth....
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.... the Sales Tax Tribunal unsuccessfully. The revision petitions were filed in the High Court, which were allowed in November 1994. The writ petition filed challenging the show-cause notices was also allowed in February 2000. Even though eligibility certificate was for the period after issue of show-cause notices, the appeals filed by the State were allowed by the Supreme Court, observing as under (page 658 of 145 STC): "In any event, this court had repeatedly held that article 226 should not be permitted to be invoked in order to challenge show-cause notices unless accepting the fact in the show-cause notices to be correct, either no offence is disclosed or the show-cause notices are ex facie without jurisdiction. That could not be sai....