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TMI Blog2017 (12) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... practice of Writ Courts interfering in matters, where there are efficacious alternate remedy provided under the relevant statute, especially in Revenue matters. 5. It is true that the Hon'ble Supreme Court has carved out exceptions and permitted parties to bypass the remedy provided under the statute and maintain a challenge by filing a Writ Petition under Article 226 of the Constitution of India. Thus the petitioner should be able to bring his case under any one of the exceptions, which have been carved out to maintain this Writ Petition despite of existence of an appellate remedy. 6. Admittedly, the petitioner does not question the jurisdiction of the respondent to issue the show cause notice and pass the impugned order. Infact, the petitioner submitted to the jurisdiction and filed their reply to the show cause notice and participated in the adjudication. Secondly, the plea that there has been violation of principles of natural justice as the respondent had afforded an opportunity of personal hearing to the petitioner after receiving the reply to the show cause notice. Whether such opportunity is to the satisfaction of the petitioner or not and whether it can be constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) Writ Court has failed to consider that, the extended period of limitation under Section 73(1) of the Finance Act can be invoked only in cases of deliberate intention to suppress material facts or to cause fraud or misrepresentation and not on mere omission [Sourav Ganguly Vs. Union of India, reported in 2016 SCC Online Cal 3234]. The appellant had already given all the copies of invoices and records pertaining to the credit availed and therefore the question of omission does not arise at all. e). Writ Court has failed to note that the High Court under Article 226 may still exercise its writ jurisdiction when there is failure of natural justice or where the orders of proceedings are wholly without jurisdiction, as held in Harbanslal Sahnia vs. IOC Ltd. reported in 2003 (2) SCC 107. In the instant case, both the contentions were raised, however the writ Court has failed to consider the same. f). Writ Court has erred in holding that opportunity of being heard was given to the appellant. The respondent had not even given reasons for rejecting the contentions and judgments relied on by the appellant. Further, after the hearing, without putting the appellant on notice, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the respondent exercises quasi judicial function and that he has a duty to act in a judicial and independent manner and in the instant case, the respondent had not applied his mind, in concluding that the CENVAT Credit was wrongly availed, as no reasons for arriving at the same were elucidated in the impugned proceedings. n) The respondent has failed to consider that there is no specific provision in the CENVAT Credit Rules that credit can be availed only on purchases from registered dealers, as held by the Hon'ble Division Benches of the Hon'ble Karnataka High Court in Judgments reported in Commissioner of Service Tax Vs. Tanvant Technologies India P Ltd. reported in (2016) 94 VST 254 and MPortal India Wireless Solutions P. Ltd., Vs. Commissioner of Service Tax, reported in (2013) 63 VST 168. o) Writ Court has failed to consider the contention of the appellant that the judgments relied on by the respondent in the impugned proceedings have no relevance to the issue at hand. p). Writ Court has failed to consider that as held in a catena of decisions, the rule of exclusion of writ jurisdiction by availability of alternate remedy is a rule of discretion and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. (iii) The general principles of law to be followed while entertaining a writ petition, when an alternative remedy is available, as per the decision of the Hon'ble Apex Court in U.P.State Spinning Co. Ltd. Vs. R.S.Pandey and Another (2005) 8 SCC 264, at para No.11 are as follows: "Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can avail effective alternative remedy by filing application, appeal, revision etc., and the particular legislation contains a detailed mechanism for redressal of his grievance. (v) In Nivedita Sharma Vs. Cellular Operators Association of India and Others {(2011) 14 Supreme Court Cases 337}, the Honourable Apex Court held that, "An alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute are under challenge. The Court has recognised some exceptions to the rule of alternative remedy. However, the high Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal or grievance still holds the field." (vi) The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the writ Court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon. 18. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal Vs. Union of India {W.P.(c) No.44 of 2009, decided on 5/10/2010}. We grant liberty to the respondent, if he so desires, to file an appropriate petition/appeal against the orders of reassessment passed under Section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010." (vii) After ..... X X X X Extracts X X X X X X X X Extracts X X X X
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