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TMI Blog2019 (8) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... cious and orders disregarding settled position of law - this is not an exhaustive list of exceptions, but is illustrative to the extent that is necessary to dispose of this case on hand. This Court is convinced that it cannot be gainsaid by writ petitioner that a revision will not lie to the first respondent. It also comes out clearly that first respondent has remanded the matter to the third respondent without expressing any opinion or view on the merits of the matter. Therefore, it is also not a case where the revisional authority has already expressed any opinion. The issue regarding refund is concluded and only with regard to interest on the refund is to be considered. Therefore examination of records and certain other supporting documents, with regard to interest liability if any is imperative for arriving at a conclusion one way or the other. It may not be possible to do such an exercise in a writ petition which is decided on affidavits and counter affidavits. In other words, quantification if any cannot be done in this writ petition. Petition dismissed. - W.P.Nos.22936, 22939 and 22940 of 2019 - - - Dated:- 5-8-2019 - Mr. Justice M. Sundar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner sought refund as well as interest of refund. 7. Complaining of inaction on the part of the respondents, writ petitioner filed an earlier round of litigation in this Court by way of writ petition being W.P.No.27857 of 2017 and the same came to be disposed of by a Hon'ble Single Judge of this Court in and by an order dated 20.11.2017 after hearing both sides, i.e., after hearing the writ petitioner counsel and the Revenue counsel. 8. Operative portion of the order is contained in paragraph 5, which reads as follows: '5. In the light of the above, there will be a direction to the 1st respondent to consider the petitioner's representation dated 24.07.2017 and pass orders on merits and in accordance with law, after affording an opportunity of personal hearing to the authorised representative of the petitioner. The above direction shall be complied within a period of three weeks from the date of receipt of a copy of this order.' 9. Pursuant to the aforesaid order, writ petitioner went before the first respondent in the said writ petition (to be noted, first respondent in the said writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.Payment and recovery of tax, penalty, etc.- (1) ..... (2) ...... (3) ...... (4) ...... (5) Where the tax paid under this Act is found to be in excess on assessment or revision of assessment, or as a result of an order passed in appeal, revision or review, the excess amount shall be refunded to the dealer after adjustment of arrears of tax, if any, due from him. Where the excess amount is not refunded to the dealer within a period of ninety days from the date of the order of assessment or revision of assessment and in the case of order passed in appeal, revision or review within a period of ninety days from the date of order giving effect to such order passed in appeal, revision or review, the Government shall pay by way of interest, where the amount refundable is not less than one hundred rupees, a sum equal to a sum calculated at the rate of half per cent or part thereof of such amount for each month or part thereof after the expiry of the said period of ninety days. Rule 11.Refunds.- (1).. (2) The dealer who claims refund due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty days admit an application for revision presented after the expiration of the first mentioned period of thirty days, if he is satisfied that the applicant had sufficient cause for not presenting the application within the first mentioned period. (2) An application for revision shall be in the prescribed form and shall be verified in the prescribed manner. (3) On admitting an application for revision, the Deputy Commissioner may call for and examine the record of the order or proceeding against which the application has been preferred and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, pass such order thereon as he thinks fit. (4) Notwithstanding that an application has been preferred under sub-section (1), the tax, fee or other amount shall be paid in accordance with the order or proceeding against which the application has been preferred: Provided that the Deputy Commissioner may in his discretion give such directions as he thinks fit, in regard to the payment of such tax, fee or other amount before the disposal of revision, if the applicant furnishes su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity of personal hearing in accordance with the directions of this Hon'ble Court. Therefore, this Court is convinced that it cannot be gainsaid by writ petitioner that a revision will not lie to the first respondent. It also comes out clearly that first respondent has remanded the matter to the third respondent without expressing any opinion or view on the merits of the matter. Therefore, it is also not a case where the revisional authority has already expressed any opinion. 19. This takes us to the alternate remedy aspect. Rule of alternate remedy is a self imposed restraint qua Courts exercising writ jurisdiction. In other words, it is not a rule of compulsion, but a rule of discretion. Though it is a rule of discretion, Hon'ble Supreme Court in Dunlop India case [ Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and ors. ] reported in (1985) 1 SCC 260 held in Paragraph 3 as follows: '3. .....Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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