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TMI Blog2021 (9) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petitioner is so advised and if the writ petitioner chooses to file Statutory appeal, the same shall be heard by the Appellate Authority on its own merits and in accordance with law - Petition dismissed. - W.P.No.19189 of 2021 And W.M.P.No.20485 of 2021 - - - Dated:- 14-9-2021 - Hon'ble Mr.Justice M.Sundar For the Petitioner : Mr.K.Soundararajan ORDER Captioned main writ petition and 'Writ Miscellaneous Petition' ['WMP'] are listed in the Admission Board. 2. An 'order dated 18.06.2021 bearing reference No.O.C.No.393/2021 (DIN:20210659XN030600EB37)' [hereinafter 'impugned order' for the sake of convenience and clarity] made by sole respondent has been called in question. To be noted, the impugned order is qua 'The Central Goods and Services Tax Act, 2017' [hereinafter 'CGST Act' for the sake of convenience and clarity] and 'The Tamil Nadu Goods and Services Tax Act, 2017 (Tamil Nadu Act 19 of 2017)' [hereinafter 'TN Goods ST Act' for the sake of convenience and clarity] and it pertains to alleged wrong availment of 'Input Tax Credit' [hereinafter 'ITC' for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy barrier. To be noted, there shall be little more elaboration infra in this order. 7. Be that as it may, learned counsel pressed into service two orders, one made by a Hon'ble learned single Judge dated 24.02.2021 in WP.(MD)No.2127 of 2021 and other being order of Chhattisgarh High Court made in WPT.No.94 of 2021 dated 24.06.2021 [ M/s.Bharat Aluminium Company Limited Versus Union of India and others] . The order made by Hon'ble single Judge of this Court is clearly distinguishable on facts as it was the specific case of the petitioners therein that a substantial portion of the sale consideration was paid only through banking channels, payments made by petitioners therein to one Charles and his wife included the tax component also, Charles and his wife are also said to be dealers registered with the very same assessment circle, but they were not examined. Therefore, the order of the other Hon'ble single Judge is clearly distinguishable on facts and it does not help or aid the writ petitioner in the case on hand. There is a more important reason as to why the other order does not come to the aid of writ petitioner in the case on hand and that is, alternate r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points in the written submission letter dated 01.03.2021 and drop the proceedings.' 11. There is nothing to demonstrate that the writ petitioner insisted on seller being examined in the personal hearing. This also goes against the writ petitioner. 12. As I am of the considered view that the writ petitioner has not got past the threshold barrier qua alternate remedy, I refrain myself from expressing further opinion or view on this aspect of the matter as that may impact the Statutory appeal, if the writ petitioner is so advised and if the writ petitioner chooses to file a Statutory appeal. 13. Reverting to alternate remedy, alternate remedy no doubt is not an absolute rule. In other words, alternate remedy rule is discretionary and it is a self imposed restraint qua writ jurisdiction. However, Hon'ble Supreme Court starting from Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260] in a long line of authorities has repeatedly held that the alternate remedy rule has to be very strictly enforced with utmost rigour when it comes to fiscal Statute. The othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, 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 quasi-judicial 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al law as they still hold the field.' Paragraph No.7 of Harbanslal principle: '7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-exi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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