TaxTMI 
TaxTMI 
2026 (5) TMI 425
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....umulation of excess input tax. 3. The Petitioner, having reversed the input tax credit attributable to such excess payment, filed refund claims under Section 54(3) of the CGST Act amounting to Rs.84,26,536/-. Show Cause Notice dated 06.01.2020 (Annexure P-2) was issued proposing rejection of the refund claims on the ground that input tax credit had been availed. The Petitioner filed replies clarifying that the credit had already been reversed. However, the refund claims were rejected by the Respondent No.1 vide order dated 05.02.2020, against which the Petitioner preferred an appeal. 4. The Appellate Authority (Respondent No. 3), vide Order-in- Appeal dated 20.05.2021, allowed the appeal and set aside the rejection order, thereby entitling the petitioner to refund. Pursuant thereto, the Petitioner filed a refund application on 03.07.2021. The refund amount of Rs.84,26,536/- was sanctioned and disbursed vide order dated 19.08.2021, though the claim for interest was rejected. 5. Subsequently, the Respondent No. 2 initiated review proceedings and directed for filing of an appeal against the refund sanction order. Parallelly, a Show Cause Notice dated 03.02.2022 (Annexure P-12....
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....on'ble Court, which it failed to do, and therefore, the attempt to unsettle the concluded issue through collateral proceedings is impermissible. 10. Learned counsel also submits that the impugned order travels beyond the scope of the show cause notice and introduces new grounds at the appellate stage, which is contrary to settled principles of law. It is further submitted that parallel proceedings have been initiated by the Respondents by issuance of a show cause notice under Section 73 of the CGST Act for recovery of the same amount, which is impermissible and amounts to abuse of process of law. 11. It is additionally contended that the impugned order has been passed without proper consideration of the detailed submissions and objections filed by the Petitioner and is thus violative of principles of natural justice. According to the Petitioner, the impugned order is a non-speaking order, as it fails to deal with the specific contentions raised and does not assign cogent reasons for its conclusions. Learned counsel concludes that the Respondents are bound by settled legal principles and departmental circulars, which prohibit reopening of concluded matters and require that suc....
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....ion of principles of natural justice. 18. Learned counsel further submits that merely because an earlier appellate order exists, the Department is not precluded from examining the correctness of a refund actually granted, particularly when such refund is found to be erroneous and results in loss to public revenue. It is argued that there is no bar in law against challenging a refund sanction order, even if it is passed pursuant to an appellate order. 19. It is also submitted that the proceedings initiated under Section 73 of the CGST Act are independent statutory proceedings for recovery of erroneously granted refund, and the same cannot be said to be impermissible or without jurisdiction. 20. In view of the aforesaid submissions, learned counsel for the Respondents prays that the writ petition be dismissed, as the Petitioner has failed to make out any case for interference under Article 226 of the Constitution of India. Appreciations and Conclusion: 21. The petitioner has raised the issues in this writ petition that the Department did not challenge the Order-in-Appeal dated 20.05.2021 before any higher forum, and in the absence of such a challenge, the said order ha....
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....vernment) from the date of communication of order or date on which the President or the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later. 4.3 Hence, as of now, the prescribed time-limit to make application to Appellate Tribunal will be counted from the date on which President or the State President enters office. The appellate authority while passing order, may mention in the preamble that an appeal may be made to the appellate tribunal whenever it is constituted within three months from the President or the State President enters office. Accordingly, it is advised that the appellate authorities may dispose all pending appeals expeditiously without waiting for the constitution of the Appellate Tribunal. 5. It is requested that suitable trade notices may be issued to publicize the contents of this Circular." 25. Therefore, all the legal grounds raised by the petitioner in this petition and the grounds raised by the respondent to support the impugned action are liable to be appreciated by the Duli constituted GST Appellate Tribunal. Once the special statutory forum has been established by the government, the High Co....
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.... when a right is created by a statute that prescribes a specific remedy or procedure for its enforcement, recourse must be had to that particular statutory remedy before seeking relief under Article 226 of the Constitution of India. This principle of exhausting statutory remedies is a matter of policy, convenience and discretion, where an alternative remedy is available. The relevant extract of the said decision is culled out as under:- "27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are....