TaxTMI 
TaxTMI 
2022 (12) TMI 1033
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....Service Tax Act, 2017 (hereinafter referred to as "the Act") on the ground that these writ petitions have been filed against the order of assessment though the petitioner has an efficacious and alternative statutory remedy of appeal under Section 107 of the Act. Learned counsel for the petitioner argued that though there exist an alternative remedy of statutory appeal, these petitions have been filed by the petitioner against the order of assessment in the matter of levy of goods and services tax for assessment years 2017-18, 2018-19 & 2019-2020 along with interest and penalty as the impugned order suffers from violation of principles of natural justice, in flagrant violation of statutory provisions with regard to issuance of show cause notice. He would submit that though the show cause notices were issued to the petitioner, the petitioner sought adequate opportunity to file reply to show cause notices, no specific date of hearing was intimated to the petitioner and finally impugned order in these three writ petitions was passed on 11.11.2022 in respect of three different assessment years. He would next contend that in any case the petitioner had submitted his reply on 11.11.202....
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....issued to the petitioner way-back on 06.09.2019, relevant details of Diesel provided by Cement Companies, GR details and agreements were required to be submitted and thereafter, the petitioner sought several adjournments followed by letter requesting withdrawal of summons. The petitioner avoided to submit any information. On 26.11.2019, summons for information were issued and the petitioner provided only partial information, another summon was issued to him on 30.01.2020 followed by summons on 10.06.2020 and 14.07.2020 seeking clarification/documents relating to dispatch of diesel. The petitioner sought adjournments due to COVID-19. On 11.08.2020, summons seeking clarification/documents with regard to quantity of dispatch of diesel were again sought to which the petitioner again started seeking adjournment. Another summon was issued to him on 15.09.2020 whereafter adjournment was sought. On 02.11.2020, another summon was issued and again adjournment was sought. Summons were again issued on 14.12.2020 requiring appropriate necessary details sought earlier to which only partial information was submitted. It was followed by summon on 11.01.2021 stating non-compliance of summons and ev....
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....of violation of principles of natural justice is made out by the petitioner. It is not that overnight the orders were passed against the petitioner. A detailed inquiry was made against the petitioner. Summons under Section 70 of the Act were issued on several occasions and opportunity was granted to provide information. According to respondents it raises an issue of disputed questions of fact, as the petitioner only submitted partial information and not the complete information and suppressed details of dispatch of diesel. Furthermore, we have gone through the contents of show cause notices in order to satisfy ourselves whether it contains the summary of grounds as required to be disclosed in form DRC-01 referable to Rule 142 of Rajasthan Goods and Service Rules 2017. We find that the show cause notice is in detail and gives the grounds including the provisions of law under which the tax is proposed to be imposed on the petitioner. The respondents have stated in the reply that during period under consideration, due to technical problems, DRC-01 form could not be attached but full care and caution was taken that summary of grounds are clearly stated in the show cause notice so th....
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....otice prejudged the issue and nothing was left to be answered, is rejected at the threshold because present is not a case where the petitioner had approached the court against the show cause notice. Otherwise also, after going through the show cause notice dated 14.07.2022 we find that the competent authority based on information collected earlier pursuant to various summons and notices issued to the petitioner only recorded its tentative opinion to seek petitioner's reply on the material collected. Present is a case arising out of proceedings for determination and levy of tax and is essentially a fiscal matter, not being a case dealing with personal life and liberty. Recent judicial pronouncements of the Hon'ble Supreme Court settle the legal position with regard to maintainability of the writ petitions under Article 226 of the Constitution of India by the High Court against the assessment order, limiting the scope of interference by the writ court in cases where remedy of statutory appeal is available. In the case of Assistant Commissioner of State Tax and Others Versus Commercial Steel Limited, 2021 SCC ONLINE SC 884, their Lordships in the Supreme Court, taking in....
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....the order passed by the first appellate authority, an appeal/revision before the Tribunal. In that view of the matter, the High Court ought not to have entertained the writ petition Under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act. At this stage, the decision of this Court in the case of Satyawati Tondon (supra) in which this Court had an occasion to consider the entertainability of a writ petition Under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under: "49. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 were echoed in CCE v. Dunlop India Ltd., (1985) 1 SCC 260 in the following words: (SCC p.264, para 3) "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 questio....
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....e the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." 51. In CCT v. Indian Explosives Ltd. [(2008) 3 SCC 688] the Court reversed an order passed by the Division Bench of the Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 52. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction Under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under: (SCC pp.175-76) "29. In our opinion, the High Court while exercising its extraordinary jurisdiction Under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide f....
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.... scheme of the Act, the Court observed: (SCC p. 781, paras 31-32) "31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court Under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 15. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition Under Article 226 of the Constitution of India against the asse....
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....ng the Assessment Order denying the Input rebate, the High Court has observed that there are no disputed question of facts arise and it is a question to be decided on admitted facts for which no dispute or enquiry into factual aspects of the matter is called for. The aforesaid can hardly be a good/valid ground to entertain the writ petition Under Article 226 of the Constitution of India challenging the Assessment Order denying the Input rebate against which a statutory remedy of appeal was available. 6. At this stage, a recent decision of this Court in the case of The State of Maharashtra and Ors. v. Greatship (India) Limited (Civil Appeal No. 4956 of 2022, decided on 20.09.2022) is required to be referred to. After taking into consideration the earlier decision of this Court in the case of United Bank of India v. Satyawati Tondon, reported in (2010) 8 SCC 110, it is observed and held that in a tax matter when a statutory remedy of appeal is available, the High Court ought not to have entertained the writ petition Under Article 226 of the Constitution of India against the Assessment Order by-passing the statutory remedy of appeal." The law declared in the aforesaid deci....