TaxTMI 
TaxTMI 
2026 (4) TMI 1578
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....nsel appearing for the petitioner, and Mr Amit Kumar, learned Sr. S.C. (CGST) for the respondents. 2. The petitioner challenges Order-In-Original dated 26.12.2025 made under Section 74 of the CGST Act, 2017. The petitioner admits that it has an alternative and efficacious remedy of an appeal to challenge the impugned Order-In-Original. However, the learned Senior Advocate for the petitioner submitted that this matter falls within the exceptions provided by the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1] and, therefore, this petition should be entertained without requiring the petitioner to avail of the alternate remedy provided under the CGST Act, 2017. 3. The learned Senior Advocate for the petitioner raised two contentions in support of his argument that this petition should be entertained despite the existence of an alternate remedy to challenge the impugned Order-In-Original:- (a) Firstly, he contended that none of the ingredients of Section 74 of the CGST Act, which are required to co-exist, are fulfilled in this matter. Therefore, he submitted that the very exercise of powers under Section 74 was an ex....
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....alternate statutory remedies. 8. The rival contentions now fall for our determination. 9. Admittedly, in this case, the petitioner has an alternative and efficacious remedy to appeal the impugned order. This is not even disputed by the petitioner. However, the contention is that the impugned Order-In-Original is without jurisdiction and violates the principles of natural justice. It is submitted that these are the two well-known exceptions where the petitioners are not usually relegated to avail of the alternate remedy provided by the statute. 10. In the case of Whirlpool Corporation (supra), the Hon'ble Supreme Court has held that where the impugned action is "wholly without jurisdiction", or where there is a patent breach of the principle of natural justice, then the rule or practice of exhaustion of alternate remedy is not rigidly enforced. 11. In the present case, the petitioner argued that the three jurisdictional parameters for invoking the provisions of Section 74 of the CGST Act were not fulfilled. The petitioner contends that even on a demurrer, the alleged wrongful availment of ITC cannot be attributed to any fraud, willful misstatement or suppression to evade....
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....cious, given the width of the appellate jurisdiction, as compared to the limited jurisdiction of judicial review vested in this Court at this stage. 16. In the case of Special Director v. Mohd. Ghulam Ghous [(2004) 3 SCC 440], the Hon'ble Supreme Court has explained that unless the High Court is satisfied that the show-cause notice was totally non est in the eyes of the law for absolute want of jurisdiction of the authority even to investigate the facts, writ petitions should not be entertained for mere asking and as a matter of routine. The writ petitioner should invariably be directed to respond to the show-cause notice and raise all defences and contentions highlighted in the writ petition. 17. In State of Maharashtra v. Greatship (India) Limited (2022) 105 GSTR 300 (SC); (2022) 17 SCC 332; 2022 SCC OnLine SC 1262; [2022] LiveLaw (SC) 784.], the Hon'ble Supreme Court, after referring to its earlier precedents on the subject, held that 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, for instance, where the very vires of the statute is in....
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....n demands that it will ordinarily be exercised subject to certain self-imposed limitations. 21. The Constitution Bench held that resorting to this jurisdiction is not intended as an alternative remedy for relief, which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy that provides an equally efficacious remedy without being unduly onerous. Again, the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or Tribunal to correct errors of fact and does not, by assuming jurisdiction under Article 226, trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 ....
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....r before the matter was recalled. Assigning a matter to the Call Book was mainly an administrative convenience. In any event, even this argument need not be foreclosed at this stage, because the same can always be tested by the petitioner in the statutory appeal provided in law. 26. Thus, this is not a case where the impugned Order-In-Original can be held to be wholly without jurisdiction or that this is a case where there has been some patent breach of the principles of natural justice and fair-play. Therefore, neither of the two exceptions put forth for bypassing the alternate statutory remedies could be said to be attracted in the present matter. 27. In the case of Oberoi Constructions Ltd (supra), the Bombay High Court has referred to several decisions of the Hon'ble Supreme Court on the issue of 'alternate remedy'. The decision in Oberoi Constructions Ltd (supra) has been followed by this Court in several matters. 28. Accordingly, by adopting the reasoning in Oberoi Constructions Ltd (supra) and the various decisions of the Hon'ble Supreme Court referred to therein, we do not think that this case is exceptional and, therefore, the ordinary practice of exhaustion of al....