Writ Petition Challenging GST Order Dismissed: Alternative Remedy Available

(Last Updated On: February 13, 2025)

Writ Petition Challenging GST Order Dismissed: Alternative Remedy Available

Summary in Key Points:

Issue: Can the assessee challenge a GST adjudication order directly before the High Court through a writ petition, or are they required to exhaust the statutory appeal remedy?
Facts: The assessee, a bank, filed a writ petition under Article 226 challenging a GST adjudication order, claiming denial of a personal hearing. The revenue argued that the petition was not maintainable due to the availability of an appeal under Section 107 of the CGST Act.
Decision: The court held that the existence of an alternative remedy does not automatically bar writ jurisdiction, but a writ petition is only entertainable in exceptional circumstances, such as a breach of fundamental rights, violation of natural justice, excess of jurisdiction, or a challenge to the validity of a statute. The court found no such exceptional circumstances in this case.

Important Note: This decision reiterates the established principle that writ jurisdiction should be invoked only in exceptional cases, especially when alternative remedies like statutory appeals are available. The court emphasized that a mere allegation of denial of hearing is insufficient to justify a writ petition, particularly when no disputed question of law is involved. This ruling ensures that the statutory appeal mechanism is utilized effectively and prevents the High Court from being burdened with cases that can be adequately addressed through established procedures.

HIGH COURT OF MADHYA PRADESH

Canara Bank

Joint Commissioner of Central Goods and Services Tax and Central Excise

SUSHRUT ARVIND DHARMADHIKARI and SMT. ANURADHA SHUKLA, JJ.

WRIT PETITION No. 37158 of 2024

DECEMBER 17, 2024

T. Suryanarayana, Sr. Adv., Ms. Tanmayee Rajkumar and Mallikarjun, Advs. for the Petitioner. Abhijeet Shrivastava, Adv. and R.D. Pararha, G.A. for the Respondent.

ORDER

Sushrut Arvind Dharmadhikari, J.- This petition under Article 226 of the Constitution of India has been filed against the order dated 22.8.2024, annexure P/13, passed in Reference No.F.V(GST)15-61/Adj/BPL-II/CB/2024-25 and the summary order dated 6.9.2024, annexure P/14, in Reference No.ZD230924005981E whereby the respondents have passed the final adjudication order confirming all the proposals in the show cause notice and rejected the petitioner’s responses and subsequently uploaded the summary order, annexure P/14.

2. At the outset learned counsel for the respondents raised a preliminary objection with regard to the availability of statutory alternative remedy under section 107 of the (Central Goods and Service Tax) CGST Act, 2017 (hereinafter referred to as ‘the CGST Act, 2017’).

3. When a query was put to the learned counsel for the petitioner with regard to availability of statutory alternative remedy of filing an appeal under section 107 of the CGST Act, 2017, learned counsel submitted that since no opportunity of personal hearing was granted to the petitioner, therefore, they have approached this Court by filing the instant petition. To buttress his contention, he relied upon the judgment of the Apex Court in the case of Godrej Sara Lee Ltd. v. Excise and Taxation officer-cum-Assessing Authority and others, reported in (2023)109 GSTR 402.

4. Heard learned counsel for the parties and perused the record.

5. The Apex court in the case of Hindustan Coca Cola Beverage Private Limited v. Union of India and others, reported in (2014)15 SCC 44 has held that when a statute provides for statutory appeal, the said remedy is to be availed by the litigating parties.

6. In the case of Hameed Kunju v. Nazim, reported in (2017)8 SCC 611, the Apex Court has held that any petition under Article 227 of the Constitution of India should be dismissed in limine where there is statutory provision of appeal.

7. The Apex court in the case of Ansal Housing and Construction Ltd. v. State of Uttar Pradesh and others, reported in (2016) 13 SCC 305, has held that when statutory appeal is provided then the said remedy has to be availed.

8. Recently, the Supreme Court by order dated 3.9.2021 in the case of The Assistant Commissioner of State Tax and others v. M/s Commercial Steel Limited, passed in Civil Appeal No.5121/2021 has held as under :-

11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:

(i)

a breach of fundamental rights;

(ii)

a violation of the principles of natural justice;

(iii)

an excess of jurisdiction; or

(iv)

a challenge to the vires of the statute or delegated legislation.

12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority.

As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.

9. In the case of Godrej Sara Lee Ltd. (supra), the Apex Court has held that High Court can only interfere in the matters when disputed question of law are involved and not in the question of facts. In the present case, no disputed question of law is involved.

10. In view of the aforesaid enunciation of the law laid down by the Apex Court, we do not find it proper to entertain this petition. However, the petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised. The petitioner would be at liberty to raise all the grounds raised in the present writ petition in the appeal. Upon such appeal being filed, the appellate authority is directed to dwell upon the issue and pass the order on merits, as expeditiously as possible in accordance with law.

11. With aforesaid liberty, this writ petition is finally disposed of.