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TMI Blog2024 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... t to entertain a writ petition, having regard to the facts and circumstances of the case. The availability of alternative remedy is a self-imposed restriction and normally High Court should not exercise its discretion under writ jurisdiction, when an effective and efficacious remedy is available. However, such alternative remedy shall not operate as a bar, where the writ petition has been filed for enforcement of any of the fundamental right or where there has been violation of the principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the case in hand, it is clear that under the scheme of Act there is provision for appeal and revision under Section 107. Thus, rights of appeal and revision have statutorily been created. Such provision of appeal prescribes the remedy and procedure for enforcing right of an aggrieved party, who is aggrieved by an order passed by an adjudicating authority. In the case in hand, the impugned orders have been passed by the Assistant Commissioner, GST Central Excise, who is an adjudicating authority. That being the position, it is clear that the petitioners are having an alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is engaged in treatment of various illness and ailment. According to the petitioner, it offers health care services. 5. The brief facts leading to issuance of show cause notice can be recorded as follows: I. It is the case of the petitioner that in course of treatment, after admission in the hospital, the in-house-patient are provided a comprehensive treatment, which includes rooms, nursing care, medicines, consumable, implants etc. II. The pharmacy department of the petitioners company treated this transferred as taxable supply of goods to the in-house-patients department and calculated output tax on transaction value of the transfers of the inputs, namely, medicines and consumable and such other items to the in-house-patients department without issuance of any tax invoice of the said goods. According to the petitioners, the said output tax so calculated was paid by declaring this transaction in the same way as pharmacy sales. III. It is further claim of the petitioners that the said goods were not supplied to the recipients i.e. the patients but were rather used for providing treatment to the patients for which, consideration from patients is received is in nature of health ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicines, consumable and other items to their in-house-patients by the tax payer during the said period as per law and there was no excess payment of tax. IX. Another reason for refund was that even without charging GST on the medicines and consumable bills by the petitioners, the rate of medicines consumable supplied to the in-house-patient was at the market price, hence, GST was included and burden of tax has been passed to the consumers. X. After receipt of the aforesaid show cause notices, by an e-mail the petitioners prayed for two weeks time to reply to the show cause notices. XI. It is the further case of the petitioners that as the common portal was not allowed to make a request for extension of time and therefore, the petitioners requested the authorities to grant time till 03.09.2021 for filing detailed reply. However, according to the petitioners, without considering the prayer of the petitioners for grant of time for submitting reply to the show cause notices, the petitioners were served with the impugned orders rejecting the claim of refund of the petitioners with effect from. XII. In the aforesaid impugned orders, it was recorded that the petitioners neither replied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne the record of any proceedings in which an adjudicating authority has passed any decision or order under This Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the appellate authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order. 12. Thus, Subsection 2 of Section 107 confers a revisional power upon the commissioner in regard to legality and propriety of a decision or an order passed by an adjudicating authority. 13. Section 2 (4) defines adjudicating authority, which is quoted herein below: (4) adjudicating authority means any authority, appointed or authorised to pass any order or decision under this Act, but does not include [Central Board of Indirect Taxes and Customs], the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling,2 the Appellate Authority and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also well settled that the power under Article 226 of the Constitution of India to issue a writ can be exercised not only for the enforcement of the fundamental right but also for any other purpose as well. 17. It is also by now well settled that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India. This Rule of exercise of statutory remedy is a rule of policy and convenience and it is discretionary. 18. The said principle also emphasises that in cases where there are disputed question of facts, the High Court may decide not to exercise it writ jurisdiction. 19. In the case in hand, it is clear that under the scheme of Act there is provision for appeal and revision under Section 107. Thus, rights of appeal and revision have statutorily been created. Such provision of appeal prescribes the remedy and procedure for enforcing right of an aggrieved party, who is aggrieved by an order passed by an adjudicating authority. In the case in hand, the impugned orders have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumable to the inpatient at market price and thus the burden of tax is transferred to such consumers. The other aspect of the controversy is that according to the authority at the relevant point of time, the pharmacy of the petitioners hospital was registered as GNRC Pharmacy and food Beverage Division for supplying of goods (medicines and consumable) but not for health care services and therefore, they are not entitled for such benefits. On the other hand, it is the case of the petitioners that they have subsequently amended their registration and therefore they are entitled for benefits. All these disputes are question of facts and such disputes can be resolved efficaciously by the appellate authority under Section 107 of the Act and accordingly this court is not inclined to exercise its writ jurisdiction more particularly to issue a writ of certiorari for setting aside and quashing the impugned show cause notices and the impugned orders. 25. Accordingly the present batch of writ petitions stand dismissed, with liberty to approach the appellate authority. The period spent in this court shall not be counted for the calculation of prescribed period of time. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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