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2024 DIGILAW 487 (TS)

UTS Impex v. Union of India

2024-07-18

NAMAVARAPU RAJESHWAR RAO, SUJOY PAUL

body2024
ORDER : 1. Sri Kailash Nath P.S.S. learned counsel for the petitioner and Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC appearing for respondent No. 2. 2. Heard on admission. 3. This is the second visit of the petitioner to this Court. In the present case, Order-In-Original dated 28.03.2024 (Annexure P.1) is the subject matter of challenge. The petitioner earlier filed W.P. No. 1970 of 2024 aggrieved by the order dated 27.12.2023 whereby without considering the reply of the petitioner, impugned order was passed. 4. Learned counsel for the petitioner submits that the respondents again passed impugned order without properly considering the contentions of the petitioner filed in the reply to the show-cause notice. In addition, the respondents have not considered their own Circular No. 187/19/2022-GST, dated 27.12.2022, whereas, this circular was considered by the same Authority while passing Order-In-Original No. 63/2023-24/GST-Medchal, dated 15.11.2023. It is submitted that the impugned erroneous order deserves to be interfered with and the petitioner may not be directed to relegate remedy of appeal. 5. Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC, submits that the impugned order is justifiable and even assuming for the sake of arguments it is erroneous, the petitioner has an efficacious alternative statutory remedy. Hence, this petition may not be entertained. In furtherance, this Court’s previous order dated 29.01.2024, the respondents passed the impugned order. 6. Learned counsel for the petitioner mainly contended that the impugned Order-In-Original does not specifically deal with the stand taken in reply in relation to National Company Law Tribunal, Hyderabad dated 26.12.2018 and their own circular dated 27.12.2022. 7. Even assuming that the aforesaid contention of the petitioner is correct, we find substance in the argument of Sri Dominic Fernandes that the same will at best makes the order “erroneous” and not without jurisdiction. The reasons given in the impugned order may not be to the satisfaction of the petitioner, but the fact remains that the reasons have been assigned. If reasons are erroneous, the order will not suffer from any patent lack of jurisdiction. The petitioner has statutory remedy of preferring an appeal and the Appellate Authority is best suited to examine the impact of Circular dated 27.12.2022 and its discussion in another Order-In-Original dated 15.11.2023 mentioned above. More so, when admittedly, neither the circular dated 27.12.2022 nor Order-In-Original dated 15.11.2023 formed part of the reply to the show-cause notice. 8. The petitioner has statutory remedy of preferring an appeal and the Appellate Authority is best suited to examine the impact of Circular dated 27.12.2022 and its discussion in another Order-In-Original dated 15.11.2023 mentioned above. More so, when admittedly, neither the circular dated 27.12.2022 nor Order-In-Original dated 15.11.2023 formed part of the reply to the show-cause notice. 8. Despite the availability of alternative remedy, the Writ Petition can be entertained in certain situations. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 it is held that violation of principles of natural justice may be one such condition. This judgment was again considered in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Another, (2005) 8 SCC 264 and held as under: “17........But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.....” 9. In view of this judgment, it is clear like cloudless sky that it is the discretion of the writ Court to entertain a petition or not despite the availability of alternative remedy. Mere breach of principles of natural justice does not make the petition entertainable. There is no patent lack of jurisdiction established nor it is shown that if petitioner is relegated to avail alternative remedy, it will cause palpable injustice to him. 10. Recently, the Hon’ble Apex Court interfered with the order of Telangana High Court where despite the availability of alternative remedy, the writ jurisdiction was exercised. The relevant portion reads as follows: “15. It could thus be seen that, this Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the Courts cannot be oblivious of the rules of self-imposed restraint evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, still it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution.” (Emphasis Supplied) 11. In view of foregoing discussion, in our opinion the petitioner has efficacious statutory alternative remedy of appeal and it is not a fit case to entertain the writ petition. 12. The Writ Petition is dismissed by reserving liberty to the petitioner to avail the appellate remedy. No costs. Interlocutory applications, if any pending, shall also stand closed.