AI Drafter 
TaxTMI 
TaxTMI 
2024 (5) TMI 1274
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....ms, Excise and Service Tax, Indore issued a show cause notice against the petitioner and its partners on 09.11.2012 wherein the petitioner was asked to show cause as to why action should not be initiated against the petitioner and its partners under the provisions of Central Excise Act, 1944[referred to as 'the Act of 1944' hereinafter] and rules made thereunder for recovery of short payment of Central Excise Duty of an amount of Rs. 7,14,282/- and levy of penalty for contravention of the provisions of Excise Act. While issuing the show cause notice, about 32 documents were relied upon by the Commissioner on the basis of which the process for recovery and levy of penalty was initiated by the Commissioner against the petitioner and its partner. However, none of the said documents were provided to the petitioner and only 06 documents out of 32 documents were provided and assurance was given that rest of documents will also be supplied . On the basis of that assurance, petitioner kept on waiting for the said remaining documents to be supplied enabling him to tender its reply. The respondent no.2 without affording proper opportunity of hearing to the petitioner passed final ord....
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....titioner under Article 19(1)(g) and 21 of the Constitution of India. Under such circumstances, the order the final order of recovery dated 29.03.2024 deserves to be quashed and set aside. 4. On the other hand, learned counsel for the respondent opposed the petition with great vehemence on various grounds which are enumerated below: (i) The first and foremost contention of learned counsel for the respondent is that petitioner is trying to canvass a situation where the petitioner is not served with all documents relied upon, which is incorrect. It is pertinent to mention here that in the communication made by the petitioner to the department, the petitioner has never submitted that he has not been served with the documents relied upon by the respondent while issuing show cause notice and rather, the petitioner has used the word ' the documents are not available with the petitioner' as the petitioner on its own showing submitted that petitioner has misplaced the documents and its not the case where the relied documents have not been supplied to the petitioner.. (ii) Secondly, para 2 of the order in original No. 14/AC/CGST & CEX/DIV-II/IND/2023-24 dated 29.....
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....e facts and circumstances of each case and the requirement of doing justice to the party aggrieved. 10. This Court finds support in its view by the judgment passed in the case of Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer reported in 2023 SCC Online Sc 95 wherein it has been observed that availability of alternative remedy does not operate as an absolute bar to the 'maintainability' of a writ petition and that the rule, which requires a party to pursue such remedy provided by a statute, is a rule of policy, convenience and discretion evolved by the judiciary rather than a rule of law. Therefore, in all the cases, the entities answering Article 12 of the Constitution of India cannot press into service the doctrine of alternative remedy as the China Wall against the invocation of writ jurisdiction. 4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desi....
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....stion of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. 5. A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in 1958 SCR 595 (State of Uttar Pradesh vs. Mohd. Nooh) had the occasion to observe as follows: "10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury....
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.... be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. 11. Adverting to the merits of the case, undisputedly, the petitioner has not been supplied with the documents, on the basis of which show cause notice was issued and despite repeated communications from the petitioner, the said documents were not provided due to which the petitioner would not be in a position to give reply to the show cause notice which culminated into passing of final order and judgment of recovery. On appeal, the respondent no. 2 was directed to adjudicate the case of petitioner afresh and after supplying requisite documents only, pass appropriate orders. However, even on rem....