2023 (6) TMI 676 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - Scope of SCN - copies of objection and written submission filed by the KMC in course of the impugned proceedings not provided - impugned order is appellable order under the statute or not - elaborate speaking order containing the facts and laws raised by both the KMC and the petitioner or not - whether impugned order has been passed by an authority having lack of jurisdiction? - opportunity of personal hearing to the petitioner provided or not - HELD THAT - The question of violation of principle of natural justice in the case of the petitioners does not arise at all since it is not a case that the issues which have been considered were not indicated in the show-cause notice. Merely by contending that the time of hearing for the KMC and the petitioners were different and that the objection and the written submission filed by the KMC who is also interested party was not furnished to the petitioners is hyper-technical ground and cannot be called a case of violation of principle of natural justice or that there was procedural irregularity in course of the impugned adjudication proceeding. Petitioners should have no grievance, if the KMC who is also an interested has been allotted a different time slot for hearing. Petitioners should have concerned only to the extent as to whether petitioners were issued any show-cause notice or not before passing the impugned adjudication order and whether any opportunity of filing any objection to the show-cause notice was given to them or not or any personal hearing was given or not and that all the contentions raised by them in their objection and written submission has been dealt with in the adjudication order or not and it is found that all these formalities have been observed and there is no violation in these regards by the adjudicating authority and furthermore petitioner could not show that on the issues on merit of the adjudication order, there is any bar on the appellate authority to consider and decide the same. Without going into the merits of the adjudication order, on the ground of availability of alternative remedy by way of statutory appeal these writ petitions are dismissed.

Summary

Issues Involved:
The judgment involves a challenge to impugned orders in original passed by the Principal Commissioner under the relevant provisions of CGST Act and Finance Act, confirming the demand of service tax against the petitioner. The issue revolves around the alleged violation of the principle of natural justice by not providing the petitioners with copies of objections and written submissions filed by the Kolkata Municipal Corporation (KMC) during the adjudication proceedings.

Details of the Judgment:

Violation of Principle of Natural Justice:
The impugned orders were challenged on the grounds of violation of the principle of natural justice. However, the court found that the impugned orders were appellable under the statute and were elaborate speaking orders containing facts and laws raised by both the KMC and the petitioner. It was noted that the impugned orders were not passed by an authority lacking jurisdiction. The court emphasized that the impugned orders were issued after giving the petitioner an opportunity for a personal hearing and considering objections and written statements. The court concluded that there was no violation of the principle of natural justice as the issues considered were indicated in the show-cause notice, and all formalities were observed by the adjudicating authority.

Availability of Alternative Remedy:
The court, without delving into the merits of the adjudication order, dismissed the writ petitions on the ground of the availability of an alternative remedy by way of statutory appeal. The court highlighted that the petitioners should have been concerned with whether they were issued a show-cause notice, given an opportunity to file objections, provided a personal hearing, and whether their contentions were addressed in the adjudication order. The court found that all these formalities were fulfilled, and there was no bar on the appellate authority to consider and decide on the issues raised in the adjudication order.

Denial of Allegations:
Since the order was passed at the motion stage without calling for an affidavit, the court deemed the allegations raised in the writ petitions to have been denied by the respondents. The dismissal of the writ petitions was based on the grounds of the availability of an alternative statutory appeal, emphasizing that all necessary formalities and principles of natural justice were adhered to during the adjudication proceedings.