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2021 (9) TMI 1041 - HC - GSTMaintainability of petition - alternative remedy of appeal - Wrongful availment of Input Tax Credit - HELD THAT - In the case on hand, there is nothing to demonstrate that the matter falls within these exceptions which have come to the stay and have come to known as exceptions in this arena of jurisprudence as in the case of WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI ORS. 1998 (10) TMI 510 - SUPREME COURT . It is also not a case where the reply of writ petitioner has not been considered. The above mentioned extracted portion of impugned order will make it clear that the reply has been considered and personal hearing has been given to writ petitioner. Therefore, there is no violation of 'Natural Justice Principles' NJP more so as personal hearing also has been given. This Court deems it appropriate to hold that the captioned writ petition does not deserve to be entertained and deserve to be dismissed primarily on the ground that the alternate remedy i.e., Statutory appeal is available to writ petitioner - If the writ petitioner is so advised and if the writ petitioner chooses to file Statutory appeal, the same shall be heard by the Appellate Authority on its own merits and in accordance with law - Petition dismissed.
Issues Involved:
1. Wrong availment of Input Tax Credit (ITC) 2. Responsibility for tax discrepancy recovery 3. Availability and appropriateness of statutory appeal as an alternate remedy 4. Examination of seller during personal hearing 5. Application of principles of natural justice Detailed Analysis: 1. Wrong Availment of Input Tax Credit (ITC): The primary issue revolves around the alleged wrong availment of ITC under the Central Goods and Services Tax Act, 2017 (CGST Act) and the Tamil Nadu Goods and Services Tax Act, 2017 (TN Goods ST Act). The petitioner, a supermarket, is accused of claiming ITC incorrectly. 2. Responsibility for Tax Discrepancy Recovery: The petitioner contends that the seller should be held responsible for the discrepancy in ITC claims and that the Revenue should recover the amount from the seller. The petitioner’s counsel cited Sections 42(3) and 42(5) of the CGST Act, which outline the communication of discrepancies to both the recipient and the supplier and the addition of the discrepancy amount to the recipient's output tax liability if not rectified by the supplier. 3. Availability and Appropriateness of Statutory Appeal as an Alternate Remedy: The court highlighted the availability of a statutory appeal against the impugned order, as noted in the preamble of the order. The court emphasized that the principles of alternate remedy, especially in fiscal statutes, are well-settled and must be strictly enforced. The court referenced several Supreme Court rulings (Dunlop India, Satyawati Tandon, and K.C. Mathew) to underline that alternate remedy should be exhausted before invoking writ jurisdiction under Article 226 of the Constitution. The court found no exceptional circumstances that would justify bypassing the statutory appeal process. 4. Examination of Seller During Personal Hearing: The court noted that the petitioner was given a personal hearing, as detailed in the impugned order. The petitioner did not insist on the seller being examined during this hearing, which weakened their case. The court observed that the petitioner’s reply had been considered, and there was no violation of natural justice principles. 5. Application of Principles of Natural Justice: The court reiterated that the principles of natural justice were upheld as the petitioner was given a personal hearing and their submissions were considered. The court referenced the Whirlpool and Harbanslal principles, which outline exceptions to the rule of alternate remedy. The court found that none of these exceptions applied in the present case. Conclusion: The court dismissed the writ petition primarily on the ground that a statutory appeal was available and should have been pursued. The court emphasized that the appellate authority should hear the appeal on its merits, uninfluenced by any opinions expressed in the current order. Consequently, the connected Writ Miscellaneous Petition was also dismissed, with no order as to costs.
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