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TMI Blog2019 (5) TMI 1721X X X X Extracts X X X X X X X X Extracts X X X X ..... of diesel oil and natural gas to a dealer registered under the Uttarkhand GST Act, and against such certificate and procedure to be prescribed by the Commissioner. The Circular, thereafter, details the procedure of upkeep and use of Form-D. Para 12 of the said circular stipulates that such manufacturing units, which are using diesel oil as fuel in manufacturing, shall submit, before the tax assessing officer, details of consumption of diesel as fuel in manufacturing during previous year 2016-17 at the first time for authentication of Form-D, and a certificate declaring the capacity of the generator used in manufacturing; and, in case of any change in the relevant capacity of the generator, then details of such change shall be intimated within three working days from such change to the respective tax assessing officer. Para 13 requires manufacturing units to maintain a log-book pertaining to the generator, and to keep details of the stock of diesel oil. Para 15 stipulates that, if it is found that Form-D issued to any manufacturing unit is misused, then the facilities provided under notification dated 29.12.2017 would not been allowed to that unit. Questions whether use of diesel oi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in line with the sole condition flowing from the notification dated 29.12.2017; a writ of mandamus reading down the conditions imposed at Sl. Nos.12 and 13 of the Circular dated 02.01.2018 in line with the sole condition flowing from the notification dated 29.12.2017; a writ of certiorari to quash the notice dated 28.04.2018 holding that the same is ex-facie perverse, illegal and arbitrary; and a writ of mandamus prohibiting the respondents from taking any coercive steps, in furtherance of the notice dated 28.04.2018 and Circular dated 01.02.2018. 3. In the order under appeal, the learned Single Judge noted the submission, urged on behalf of the appellant-writ petitioner, that clauses 12 and 13 of the Circular dated 02.01.2018 ran contrary to the notification dated 29.12.2017; the Commissioner, by way of a circular, could not put an embargo to the concession provided in the notification; and clause 'D' of the relief clause was against the show-cause notice dated 28.04.2018, calling for the appellant-writ petitioner's explanation. The learned Single Judge observed that, without venturing into the merits of the matter and without answering any question which had been posed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint of the appellant-writ petitioner, in short, is that the Assessing Authority has chosen not to rely on the notification issued by the State of Uttarakhand dated 29.12.2017; and is, instead, relying on the directions issued by the Commissioner in the Circular dated 02.01.2018; and the impugned show-cause notice is, therefore, illegal. 6. The scope of interference, in proceedings under Article 226 of the Constitution, against a show-cause notice is extremely limited. In Sushil & Company1, on which reliance is placed on behalf of the appellant- assessee, a show-cause notice was issued, to the respondent therein, alleging that they were service providers, they had raised two separate bills for the same work, and they were liable to pay service tax. On this show-cause notice being subjected to challenge, the High Court, accepted the plea of the assessee and quashed the show-cause notice. On the revenue carrying the matter in appeal, the Supreme Court observed:- "……... Before coming to the issue at hand, we may record the statement of Mr. A.K. Sanghi, learned Senior Counsel appearing for the Appellant-Department, that it was not appropriate for the High Court to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. Brahm Datt Sharma and Anr: [1987] 2 SCR 444 , Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr.: 2004 (164) ELT 141 (SC) and Union of India and Anr. v. Kunisetty Satyanarayana: AIR 2007 SC 906, but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Ors. v. Union of India and Ors.: (1988) ILLJ 162 SC]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. ………….. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant: AIR 2006 SC 2304, stating: A post decisional hearing given by the High Court was illusory in this case. In K.I. Shephard and Ors. etc. etc. v. Union of India and Ors.: (1988) ILLJ 162 SC, this Court held: ...It is common experience that once a decision has been taken, there is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, and are not matters of jurisdictional factors. (Union of India v. Hindalco Industries (2003) 5 SCC 194). It would, ordinarily, not be proper or appropriate that the initial jurisdiction of the authority/Tribunal to deal with jurisdictional facts should be circumvented and the decision, on such a preliminary issue, sought before a High Court in its writ jurisdiction. (Express Newspapers (P) Ltd. v. Workers AIR 1963 SC 569, M. Ramalinga Reddy (2007) 9 SCC 286). However, the self-imposed restrictions on the High Court not to entertain a writ petition, if another effective and efficacious remedy is available, will not operate as a bar where the order or proceedings are wholly without jurisdiction. (Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1). 12. In very rare and exceptional cases, the High Court can quash a show-cause notice if it is found to be wholly without jurisdiction. A show-cause notice does not give rise to any cause of action as it does not amount to an adverse order which affects the rights of any party. It is quite possible that, after considering the reply to the show-cause notice, the authority concerned may drop the proceedings and/or hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , M. Ramalinga Reddy (2007) 9 SCC 286). 16. In the light of law declared in the aforesaid judgments, it is only if the show-cause notice is without jurisdiction, or if the authority issuing the show-cause notice has already made up his mind and has determined the issue, or where facts are admitted or are not in dispute, would the High Court be justified in entertaining the Writ Petition. 17. The dispute, in the present case, is whether the circular issued by the Commissioner, Commercial Tax dated 02.01.2018 falls foul of notification dated 29.12.2017. The learned Single Judge has, in the order under appeal, observed that all these contentions can be urged in reply to the show-cause notice. 18. In this context it is necessary to briefly refer to the statutory provisions conferring power on the Government to issue the notification, and the provision whereby the Commissioner has been conferred the power to issue orders, instructions and directions to his subordinates. 19. Section 4(4) of the Uttarakhand Value Added Tax Act, 2005 (hereinafter referred to as the "Act") enables the State Government, by notification in the official gazette, to declare different rates in respect of dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules. 21. The Commissioner issued Circular dated 02.01.2018 informing all Joint Commissioners in the State that Entry-3(A), Schedule III to the Uttarakhand VAT Act was amended by notification dated 29.12.2017; it provided for payment of tax @5% on the sale of diesel oil and natural gas to a dealer registered under the Uttarkhand GST Act, and against such certificate and procedure to be prescribed by the Commissioner. The Circular, thereafter, details the procedure of upkeep and use of Form-D. Para 12 of the said circular stipulates that such manufacturing units, which are using diesel oil as fuel in manufacturing, shall submit, before the tax assessing officer, details of consumption of diesel as fuel in manufacturing during previous year 2016-17 at the first time for authentication of Form-D, and a certificate declaring the capacity of the generator used in manufacturing; and, in case of any change in the relevant capacity of the generator, then details of such change shall be intimated within three working days from such change to the respective tax assessing officer. Para 13 requires manufacturing units to maintain a log-book pertaining to the generator, and to keep details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, are confined only to its use in the actual manufacture of goods are again matters for the Assessing Authority to examine. It would be wholly inappropriate for this Court, even before the matter is considered by the Assessing Authority in the first instance, to adjudicate these issues in writ proceedings under Article 226 of the Constitution of India. Suffice it to observe that, since the circular dated 02.01.2018 does not explicitly exclude use of diesel oil for other purposes, from the ambit of the notification dated 29.12.2017, the submission that the Commissioner has already held that the notification should be confined only to the actual manufacture, and no useful purpose would therefore be served in approaching the Assessing Authority, does not merit acceptance. 24. The other contention, urged by Mr. M.P. Devanath, learned counsel for the appellant-writ petitioner, is that the Assessing Authority has already made up his mind and no useful purpose would, therefore, be served in submitting a reply to the show-cause notice. All that the Assessing Authority has observed, in the show-cause notice, is that the assessee had used Form-D in procuring diesel which is also used a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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