TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1316
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....ircle, Aurangabad. Petitioner is setting up a Super Thermal Power Project of 3x660 MW in Nabinagar in the State of Bihar. It is stated that in the execution of the Project petitioner has entered into three separate contracts (i) for supply of goods procured from outside India (ii) indigenous supply of goods procured within India and (iii) their installation and commissioning. It is said that the petitioner supplied imported goods to Nabinagar Power Generating Company Pvt. Ltd. by transferring the title in goods on high seas, the title of indigenous goods is transferred while the goods are inter-state movement. It is said that the petitioner is not liable to pay sales tax on high seas sales in view of Section 5 of the Central Sales Tax Act, 1956 (hereinafter referred to as CST Act) read with Article 286 of the Constitution of India so also in view of Section 6 of BVAT Act. That apart, for the indigenous sales the petitioner claimed exemption under Section 3(b) read with Section 6(2) of the CST Act. Be that as it may, the fact remains that the petitioner was issued show cause notices in the matter of payment of duty by the authorities of the BVAT Act for the periods in question and....
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....ven without granting them sufficient opportunity to produce Form-C certificate. Shri Ganeshan, apart from referring to the pleadings made as indicated from paragraphs-13 onwards in CWJC No. 3661 of 2017 referred to Haziri the document recording the memorandum of proceeding held vide Annexure-8 in the records of CWJC No. 3576 of 2017 to show that papers and documents of high seas sales were produced and time was sought for to produce and receive Form-C from the Department and the customer concerned. He further referred to Annexures-9 and 10 i.e. the affidavit filed by Shri Anjanee Tripathi, departmental representative, namely, Indirect Tax Analyst of the petitioner and Shri Anjan Ganguly, Advocate who appeared on 07.01.017 and 18.02.2017 and argued that the assessment order passed only because the relevant documents were not produced, is arbitrary and unreasonable and it is a fit case where matter should be remanded and adequate opportunity granted to the petitioners to establish their claim that they are not liable to pay the duty. Shri Ganeshan also argues that the averments made by the petitioners in this regard going unrebutted, there being no specific denial of the averments ma....
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.... of natural justice is writ large, relegating the petitioner to take recourse to the alternative remedy is not required, and in such cases in exercise of writ jurisdiction under Article 226 of the Constitution this Court can interfere. Apart from the aforesaid submissions, learned Senior Counsel for both the parties made various arguments and submissions to indicate that on merits also the rival contentions are correct. However, at this stage, it is not necessary for us to go into these aspects of the matter. At the very outset, we are required to consider as to whether the contention of the petitioner that order has been passed without granting them the adequate opportunity is correct, and, therefore, we can exercise our jurisdiction to interfere into the matter or to relegate the petitioners to take recourse of the statutory remedy available. Having bestowed our anxious consideration to the questions in issue particularly to the effect that the impugned order has been passed without adequate opportunity of hearing, we find that in both the writ petitions specific averments have been made by the petitioner with regard to the facts at the manner in which the proceedings were held....
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.... to vendors 'E-1' is also not received. Sd/ 07.02.2017" Similarly, the Haziri available at Annexure-6 in the record of CWJC No. 3661 of 2017 is the Haziri for 18.02.2017 again for both the years and in this also similar assertions as are made on 07.02.2017 are made with regard to production of documents and the same reads as follows:- HAZIRI The above-named dealer is present today, i.e. 18.02.17 to attend the hearing for the year 2014-15 & 2015-16. In this connection we are submitting the letter issued by Nabinagar Power Generating Co. P. Ltd. regarding issuance of Form 'C' to the dealer for the year 2014-15 Letter dated 17-02-17 A copy of dummy PDF of Form 'C' is also enclosed. Under the circumstances we request to your goodself to allow us three wks. time to submit the Form 'C'. It is pertinent to mention here that Nabinagar Power Generation Co. P. Ltd. is also registered under your esteemed circle. For the Year 2015-16, we have not yet received Form 'C' so far onward issuance to our vendors from your good office. Naturally, we have received no Form 'E-I'/ E-II from our vendors. The application for issuance of Form 'C' is made for more than a month. Considerin....
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....and 18.02.2017 time was sought for producing Form-C document, month's time was sought for on 18.02.2017 and without passing any order on this prayer, on 25.02.2017 the impugned order of assessment has been passed. Accordingly, in our considered view it is a case wherein assessment has been done without granting adequate opportunity to the petitioners without giving them opportunity to furnish further document as prayed for, and the impugned order also does snot record the proceedings correctly as the assertions made in the writ petitions are not rebutted either by filing affidavit or producing documents to rebut the same by the competent officer to say that the contentions of the petitioner are not correct. Even in the counter affidavit as indicated hereinabove, there is a complete silence in this regard. Now in the backdrop of the entire aspects of the matter we are required to consider the question of existence of alternative remedy and exercise of our jurisdiction in the matter. Even though as vehemently argued by the learned counsel representing the Revenue in the case Zunaid Enterprises (supra) and again in the case of Chhabi Dass (supra) it is held by the Supreme Court that....