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TMI Blog2024 (8) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... hat two conditions namely violation of the principle of natural justice and a challenge to the vires of the statute or delegated legislation can be said to be attracted to entertain this petition as canvassed on behalf of the petitioner. The petitioner has contended that no personal hearing was given and therefore, there is violation of principle of natural justice and the petitioner has challenged the vires of Section 16 (2) (c) of the GST Act and therefore, the petitioner should not be entertained instead of relegating the petitioner to avail alternative efficacious remedy. Violation of principle of natural justice - HELD THAT:- As it emerges from the facts of the record, there are disputed questions of fact with regard to granting opportunity of hearing to the petitioner. On one hand as the respondent-authority has categorically recorded that the personal hearing was provided and the petitioner did not remain present, whereas, on the other hand, the petitioner has disputed such statement in the impugned order by contending that no notice for personal hearing was served upon the petitioner. Therefore, such issue with regard to providing opportunity of hearing has given rise to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 14, 19 (1) (g) of The Constitution of India, 1950. C. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate Writ and quash and set aside the Order-in-Original dated 22.02.2024 vide reference no. ZD240224049485G issued by Respondent I at Annexure E. D. Pending the proceedings before this Hon'ble Court, Your Lordships may be pleased to issue a writ of mandamus or any other appropriate Writ to respondents to not take any coercive actions including recovery of dues till the final disposal of this petition. E. Pass any other appropriate writ(s), order(s), direction(s) as this Court may deem fit and proper in the facts and circumstances of the instant case and in the interest of justice. 2. The brief facts of the case are as under:- 2.1 The petitioner herein is a proprietor of M/s. Camron Sales engaged in the business of manufacturing and trading of Brass products in GIDC, Jamnagar. The petitioner made an application for allotment of GST number under the provisions of Central/State Goods and Service Tax Act, 2017 (for short the GST Act ) and accordingly, certificate dated 2.12.2019 was issued by the GST Department to the petitioner. 2.2. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent-authority passed an Order-in-Original dated 22.2.2024 in Form GST DRC-07 by determining the liability of the petitioner for reversal of the Input Tax Credit amounting to Rs. 78,09,431/- x 2 = Rs. 1,56,18,861/- towards CGST and GST. 3. Learned advocate Mr. Sahil J. Rao for the petitioner submitted that on bare perusal of the impugned order dated 22.02.2024 shows that the contentions raised by the petitioner are not dealt with. It was therefore submitted that the impugned order is a non speaking order and liable to be quashed and set aside. In support of his submissions, the reliance was placed on the decision in the case of Siemens Engg. Mfg. Co. of India Ltd. Vs. Union of India reported in (1976) 2 SCC 981 and in case of Kishan Lal Vs. Union of India another reported in (1998) 2 SCC 392. 4. Learned advocate for the petitioner referred to the provision of Section 16 (2) (b) 16 (2) (c) read with Section 236 of the GST Act read with Rule 36 of the GST Rules to submit that the petitioner has provided the details in the documents as prescribed under the Rule so as to avail the Input Tax Credit. The reliance was also placed on Section 31 (f) as well as Section 155 of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order should not be interfered. 6. It was further submitted that the contention raised by the petitioner rise to the disputed questions of fact pertaining to the opportunity of hearing in as much as in the impugned order it is categorically recorded that the personal hearing was provided to the petitioner but, no one remained present, whereas, on the other hand the petitioner is contending that no communication was made from the respondent to remain present for personal hearing. 7. It was therefore submitted that as held by the Hon ble Apex Court in case of Commercial Steel Ltd. (Supra), the petitioner should be relegated to avail the efficacious alternative remedy under Section 107 of the GST Act. 8. Having heard learned advocates appearing for the respective parties and considering the submissions made on the behalf of the petitioner, it would be necessary to first determine as to whether entertain this petition, in view of the alternative remedy available to the petitioner to challenge the impugned order dated 22.02.2024 under Section 107 of the Act. Hon ble Supreme Court in the case of M/s. Commercial Steel Ltd. (Supra) in the similar facts has held that in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. When, it is a composite invocation of Section 16 (2)(b) and Section 16 (2) (c) of the GST Act even if, the vires of Section 16 (2) (c) GST Act are challenged in the present proceedings, the question of ascertaining the facts and the documents produced on record for the adjudication vis-a-vis the violation of Section 16 (2) (b) is concerned, it would require thorough analysis of the documents on record. In such circumstances, we are of the opinion that this is an exceptional circumstances as held by the Hon ble Apex Court in the case of M/s. Commercial Steel Ltd. (Supra), so as to entertain this writ petition on the grounds canvassed by the petitioner. With regard to the other contentions of the petitioner, the same are on merits which the petitioner is entitled to raise with regard to the interpretation of Section 16 (2) (b) read with Rule 36 and Section 155 of the Act relating to the burden of proof can be raised before the Appellate Authority in the appeal which may be filed by the petitioner under Section 107 of the GST Act. 12. For the above reasons, we are of the opinion that no interference is required at this stage in view of the availability of the alternative an eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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