2023 (6) TMI 1248

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ance Act, 1994, and (v) penalty of Rs. 2,95,33,148/- under section 78 of the Finance Act, 1994. 3. The learned counsel for the respondents had raised preliminary issue on the point of maintainability by submitting that alternative and efficacious remedy is available to the petitioner by filing an appeal before the appellate authority. It was submitted that the departmental authorities had issued demand -cum- show-cause notice dated 07.11.2019 to the petitioner, wherein the respondent no.2 had provided all the necessary particulars. It contained the details of (i) computation of service tax liability, (ii) details of contravention of provisions of the Finance Act, 1994 and rules framed thereunder, (iii) invoking of extended period of limitation, (iv) penal provisions, (v) savings clause, and (vi) break-up of nature of demand. However, the petitioner had provided only with a two paragraph reply dated nil, served on 05.12.2019, wherein it was admitted that the petitioner had disclosed gross receipts from contract to the extent of Rs. 23,89,41,323/- and merely stated that the petitioner was a government contractor mainly of Irrigation Department whose contract receipt does not fall in....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....was also submitted that existence of alternative remedy is always not a ground for the writ Court to relegate the parties to avail such remedy. In support of his submissions, the following cases have been relied upon, viz., (i) Godrej Sara Lee Ltd. v. Excise and Taxation Officer- cum- Assessing Authority & Ors., 2023 SCC OnLine 95 , (ii) Magadh Sugar (supra) , (iii) Assistant Commissioner of State Tax v. Commercial Steel Ltd., 2021 (52) GSTL 385 (SC) , (iv) M.P. State Agro Industries Development Corpn. Ltd. & Anr. v. Jahan Khan, (2007) 10 SCC 88 , (v) J.M. Baxi & Co. v. Commissioner of Customs, New Kandla & Anr., (2001) 9 SCC 275 , (vi) State of Tripura v. Manoranjan Chakraborty & Ors., (2001) 10 SCC 740 , (vii) M/s. N.E. Logistics & Anr. v. Union of India & Ors., W.P.(C) 1870/2022, decided on 23.03.2022, (viii) Anup Trade and Transport Pvt. Ltd. v. Union of India & Anr., W.P.(C) 3106/2022, decided on 14.02.2023 , (ix) G.B. Chowdhury Holdings Pvt. Ltd. v. Union of India & Anr., W.P.(C) 2382/2022, decided on 04.04.2022 . 6. In this case, admittedly, the petitioner had not registered himself under the Central Goods and Service Tax Act, 2017. The petitioner claims that his receipts f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....22 SC 4408: (2022) 0 Supreme(SC) 948 , wherein it has been observed and held as under:- 6. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against 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 United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 in which this Court had an occasion to consider the entertain ability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be r....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....al under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where 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 Developme....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law." 53. In Raj Kumar Shivhare v. Directorate of Enforcement, (2010) 4 SCC 772, the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the 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-bye 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 b....