TaxTMI 
TaxTMI 
2021 (10) TMI 1074
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....t Tax Credit' [ITC]. 4. Mr.Sujit Ghosh, learned counsel appearing on behalf of Mr.A.K.Rajaraman counsel on record for writ petitioner is before me. 5. Short facts shorn of elaboration or in other words, short facts imperative for appreciating this order are that the writ petitioner provides DTH services; that DTH stands for 'Direct to Home'; that it is on the basis of contract with another company; that it is provided through what is known as 'Tata Sky Hardware'; that the revenue received by the company for providing service qua installation is subject to service tax; that a surprise inspection was conducted inter-alia under Section 65 of TNVAT Act by Enforcement Wing; that post surprise inspection, objections were called for from the writ petitioner; writ petitioner did give objections inter-alia setting out their business modules, providing a copy of contract by highlighting the position qua transfer of goods; that the second respondent considered these objections and inter-alia came to the conclusion that charges collected by writ petitioner are nothing but sale price and are therefore, taxable under TNVAT Act; that the captioned writ petition has been file....
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....nch on 03.09.2021. To be noted, there will be a little more discussion on this elsewhere infra in this order; (d) Prior to aforementioned case law, Hon'ble Supreme Court, in a long line of authorities including but not limited to Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260], Satyawati Tandon [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) 3 SCC 85] has held that alternate remedy no doubt is not an absolute rule, it is a self imposed restraint and it is discretionary, but it has to be applied with utmost rigour when it comes to fiscal Statutes; (e) Relevant paragraph in aforementioned Dunlop case law is paragraph No.3 and most 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 ....
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....ggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight) (g). Relevant paragraphs in Commercial Steel case are paragraph Nos.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 t....
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....ptions adumbrated herein by Hon'ble Supreme Court are four in number and in the case on hand, from the narrative thus far, it will be clear that none of these exceptions are attracted. Even if this adumbration is construed to be illustrative and exhaustive there is noting before me to demonstrate any other exception as settled in lead case laws in this regard i.e., Whirlpool principle [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1] 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]. This is such an oft quoted case law that it has come to stay as 'Whirlpool exceptions' in litigation parlance. Without burdening order with extracts in this regard, it will suffice to say that the challenge qua impugned order is predicated on points urged in the hearing (notwithstanding very many averments/grounds in writ affidavit and case law compilations) qualify only as grounds of appeal in a regular Statutory appeal and do not warrant interference....
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....T Act. Constitution Bench Judgement of Hon'ble Supreme Court in Oudh Sugar Mills Ltd., Vs. Union of India reported in 1978 (2) ELT (J 172) was referred to as a last desperate effort to convince this Court. That was a case where Hon'ble Supreme Court came to the conclusion that there was inference involving unwarranted assumptions. That was a case under Central Excise where there were certain calculations made based on certain assumptions. For instance, difference of 56 maunds noticed by the Assistant Chemical Examiner during the two and quarter hours test conducted by him was uniform for certain specific hours working throughout the working hours of the crushing season which began beyond the day when the test was conducted and there was another assumption that the persons in-charge of the operation of letting in mixed juice filled the tanks uniformly upto a level beyond the fixed mark and never below that level or at that level and there were several assumptions. This is not a matter which turns on such a factual matrix is my considered view. In this regard, I remind myself of law laid down nay law declared by another Constitution Bench Padma Sundara Rao principle [Padma Su....