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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 ..... of opportunity. Adverting the pleadings and submissions, vide order dated 16.08.2017 in W.P.No.19626 of 2017, the writ Court, at paragraph Nos. 4 to 7, ordered as hereunder. 4. The first hurdle, the petitioner has to cross is to satisfy this Court the Writ Petition is maintainable, despite existence of an alternate remedy. In a long line of decisions, the Hon'ble Supreme Court has deprecated the 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 jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the extended period cannot be invoked in the present case, as the appellant had filed returns in ST-3 and claimed exemption. Having regard to the statutory limit within which the Appropriate Authority has to act and his failure to act in conformity with the principles of natural justice, writ Court ought to have set aside the impugned proceeding as held in Sona Builders Vs. Union of India, reported in (2001) 10 SCC 280. 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is paid and there is no other claim of credit by any other party, then the claim of the Appellant has to be accepted. l) Writ Court has failed to consider that the respondent had merely reproduced the contents of the show cause notice without going into the merits of the case or the contentions of the appellant, thereby the respondent had not applied his mind in passing the order in the impugned proceedings. m) Writ Court has failed to take 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 Wirele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do, otherwise. (ii) In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s. Gopinath sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999 (113) E.L.T. 17(SC) = 2000 (10) SCC 13, the Hon'ble Supreme Court held that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Caesar's wife , the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act, as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In light of the same, we are of the considered opinion that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipura {(1999) 1 SCC 472, Shivgonda Anna Patil Vs. State of Maharashtra {(1999) 3 SCC 5}, C.A.Abraham Vs. ITO {(1961) 2 SCR 765}, Titaghur Paper Mills Co Ltd., Vs. State of Orissa {(1983) 2 SCC 433}, H.B.Gandhi Vs. Gopi Nath Sons {1992 Supp (2) SCC 312}, Whirlpool Corpn Vs. Registrar of Trade Marks {(1998) 8 SCC 1}, Tin Plate Co. of India Ltd., Vs. State of Bihar {(1998) 8 SCC 272}, Sheela Devi Vs. Jaspal Singh {(1999) 1 SCC 209} and Punjab National Bank Vs. O.C.Krishnan {(2001) 6 SCC 569}, this Court held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. 4. In the case on hand, question as to whether action was taken within the time provided under Section 73(1) of the Finance Act, or under the extended period and violation of natural justice, also can be urged before the appellate authority. 5. In the light of the decisions stated supra, and discussion, we are not inclined to entertain the appeal. Order of the writ Court is sustained. Appellant/Writ petitioner is permitted to move the appellate forum. Time granted by the writ Court is extended by two weeks from the date of receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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