TaxTMI 
TaxTMI 
2021 (9) TMI 1041
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....ararajan, learned counsel on record for writ petitioner who is before this Virtual Court submits that the dealer in the case on hand is a Super Market. As already alluded to supra, the matter pertains to alleged wrong availment of ITC. 4. Notwithstanding very many averments and very many grounds raised in the writ affidavit, learned counsel made a focused submission on one point and that one point is, the seller is responsible in this case and Revenue should recover from the seller. In support of his contention, learned counsel drew the attention of this Court to Sections 42(3) and 42(5) of CGST Act, which read as follows: '42(3). Where the input tax credit claimed by a recipient in respect of an inward supply is in excess of the tax declared by the supplier for the same supply or the outward supply is not declared by the supplier in his valid returns, the discrepancy shall be communicated to both such persons in such manner as may be prescribed. 42(5). The amount in respect of which any discrepancy is communicated under sub-section (3) and which is not rectified by the supplier in his valid return for the month in which discrepancy is communicated shall be added to the ou....
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.... remedy principle was not put in issue and therefore, not gone into in the other matter by the Hon'ble Judge. Therefore, to that extent the case is clearly on a different footing and therefore, it does not help the writ petitioner in the case on hand. As far as Chhattisgarh High Court's case is concerned, no elaboration is required to say that it has only persuasive value, but there is nothing in that order to show that personal hearing was given. In the case on hand, personal hearing has been given. The principle laid down by the Chhattisgarh High Court that recovery shall be made from the seller and only in exceptional circumstances, it can be from the recipient qua ITC turns on merits and I refrain myself from expressing any opinion on the same. Suffice to say that the Chhattisgarh High Court order also does not discuss anything about the alternate remedy and exceptions thereto and therefore, it does not come to the aid of the writ petitioner in the instant case. 8. As already alluded to supra, there is no disputation or disagreement that Statutory appeal is available to the writ petitioner. This is set out in the preamble portion of the impugned order itself and releva....
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....rized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85]. Relevant paragraph in Dunlop case is paragraph No.3 and relevant portion of the same reads as follows: '3. ....... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.....
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....; (underlining made by this Court to supply emphasis and highlight) 15. Exceptions to the above, if at all and if that be so are clearly reiterated in Whirlpool principle [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1] and Harbanslal principle [Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd., and others reported in (2003) 2 SCC 107]. In the case on hand, there is nothing to demonstrate that the matter falls within these exceptions which have come to the stay and have come to known as Whirlpool exceptions in this arena of jurisprudence. It is also not a case where the reply of writ petitioner has not been considered. The above mentioned extracted portion of impugned order will make it clear that the reply has been considered and personal hearing has been given to writ petitioner. Therefore, there is no violation of 'Natural Justice Principles' ['NJP'] more so as personal hearing also has been given. 16. Relevant paragraphs in Whirlpool and Harbanslal are paragraph Nos.15 and 7 respectively and the same read as follows: Paragraph No.15 of Whirlpool principle: '15. Under Article 226 of the Constitu....
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....d in a very recent order of Hon'ble Supreme Court made about 10 days ago i.e., on 03.09.2021 in Civil Appeal No 5121 of 2021 [The Assistant Commissioner of State Tax and Others Vs. M/s Commercial Steel Limited]. Relevant paragraph Nos. are 11 and 12 and the same read as follows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of f....