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TMI Blog2007 (11) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Thus the petitioners have not shown sufficient reason or cause for this court to interfere by setting aside the impugned orders of the respondent, while a statutory appeal remedy is available to the aggrieved parties - Writ Petition Nos. 27576,27577 of 2007 - - - Dated:- 1-11-2007 - JAICHANDREN M. , J. ORDER:- M. JAICHANDREN J. Mr. R. Mahadevan, the learned Additional Government Pleader (Tax), takes notice for the respondent. Heard Mr. D. Trilokchand Chopda, the learned counsel appearing for the petitioners as well as Mr. R. Mahadevan, the learned Additional Government Pleader (Tax), appearing for the respondent. With the consent of the learned counsel appearing on either side, the writ petitions are taken up for final disposal. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. It is submitted that the petitioner-industry is a manufacturer and exporter of stainless steel utensils and is an assessee on the files of the respondent. The respondent, after checking and verifying the accounts of the petitioners, had passed assessment orders for the years 1999-2000 and 2000- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petitions, the petitioners had also submitted that denial of the copies of the records and an opportunity of cross-examining the persons, on whose statements the enforcement authorities had arrived at their conclusions to fasten the liability on the dealers such as the petitioners, is totally against the well-established principles of law and contrary to the statutory provisions of the Act as well as the various decisions of this court and the apex court. It has been submitted by the petitioners that the respondent in the above writ petitions had sought to revise the original assessment orders on the basis of the statement of one S. Mahendra Kumar Jain for the levy of tax and penalty on the petitioners. The petitioners had filed an interim objection requesting the respondent to furnish the copies of the records and the statement relied on for the revision of the assessment order and for an opportunity of cross-examining S. Mahendra Kumar Jain, while exercising the powers as provided for under section 54 of the Act. However, the respondent had passed the impugned order without furnishing the copies of the records requested for and without providing an opportunity of cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the petitioner that in similar circumstances, certain assessment orders have been challenged before this court by way of writ petitions filed by the petitioners therein and this court had passed orders on merits, after hearing the parties concerned, setting aside the impugned orders and directing the respondents therein to pass orders afresh after furnishing the copies of the records relied on by them and by providing an opportunity of cross-examining the witnesses, on whose statements the impugned orders had been passed. The learned counsel appearing for the petitioners had placed before this court some of the orders in which such directions had been given. The learned counsel appearing for the petitioners had also cited various decisions of the Supreme Court as well as of this court in support of his contentions to show that when the principles of natural justice and fair play are not strictly followed, while passing the impugned orders, such orders passed by the respondents cannot be sustainable in law. The learned counsel appearing for the petitioners had also cited various decisions of the courts of law, including the decision rendered by the Supreme Court in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venience and discretion and never a rule of law. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. [2003] 2 SCC 107, the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights or where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In a recent judgment in State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1 (SC), a three-judge Bench of the Supreme Court after an exhaustive consideration of the earlier decisions held as follows (at paras 23 and 24 at page 20): '. . . That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Kumar Jain has been registering his business in different names without carrying on any business activity and has indulged in issuing only sham/bogus bills without there being any sale or purchase and without handling the goods which represents the subject-matter of the respective sale bill. Several dealers had been claiming second sales exemption based on the bills issued by S. Mahendra Kumar Jain and several writ petitions were also filed seeking to set aside the order of assessment on the ground that no opportunity was provided to cross-examine the said S. Mahendra Kumar Jain who has rendered a statement, dated August 20, 2003, admitting that he was a bill trader and also that he had actually not sold any goods as contained in the sale bills produced by his purchasers. It has been further submitted that there has been a heavy loss of revenue to the public exchequer amounting to more than rupees 700 crores and it is imperative for a competent authority to conduct a comprehensive investigation into the real nature of the transactions said to have taken place between S. Mahendra Kumar Jain and his customers. It has also been submitted by the learned Additional Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing S. Mahendra Kumar Jain, it would be impossible for such authorities to pass fresh orders as the said S. Mahendra Kumar Jain is either absconding or is a non-existent person. It was further submitted that the only appropriate remedy open to the petitioner is to file an appeal before the concerned authority, as provided under the law. It was also submitted that even though the petitioners had an opportunity of contesting their cases before the respondent by filing all the relevant records and by cross-examining the persons, who had made the statements, based on which the impugned orders are said to have been passed, they have not availed such an opportunity. Even otherwise, the petitioners have an efficacious alternative remedy of filing appeals before the appellate authority concerned to redress their grievance, as contemplated by law. While so, it is improper for the petitioners to come before this court by filing writ petitions, under article 226 of the Constitution of India, to re-open the issues relating to the impugned orders passed by the respondent. In view of the orders passed by the First Bench of this court, dated June 22, 2006, in Writ Appeal Nos. 749 and 750 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money due to the public exchequer is alleged to have been stalled by taking recourse to such illegal methods. In such circumstances, this court is of the considered view that the said order passed by the Division Bench of this court, dated June 22, 2006 made in W.A. Nos. 749 and 750 of 2006 and W.P. Nos. 17575 and 17576 of 2006, would be applicable to the present cases. Further, the petitioners have not shown sufficient reason or cause for this court to interfere by setting aside the impugned orders of the respondent, while a statutory appeal remedy is available to the aggrieved parties. Therefore, the writ petitions are dismissed, permitting the petitioners to file statutory appeals, within a period of two weeks from the date of receipt of a copy of this order, on condition that the petitioners, in each of the writ petitions, deposit 25 per cent of the tax component demanded and on such condition being complied with, the respondent, after affording necessary opportunity to the petitioners as contemplated by law, is to entertain and decide the appeals, on merits without raising the issue of limitation, and pass appropriate orders, on merits and in accordance with law, within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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