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TMI Blog2024 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt or tribunal or an adjudicating authority to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon a statutory remedy provided by the governing statute for obtaining relief. In the case in hand, it is not the case of the petitioner that the petitioner did not receive the Demand cum- Show Cause Notices. On receipt of the Demand cum- Show Cause Notices, the petitioner ought to have replied to the said Demand cum- Show Cause Notices. By issuance of a show cause notice, a noticee is asked to respond to the proposed action. With issuance of a show cause notice, the rights and obligations of the parties are not decided finally - In the case in hand, with the petitioner not availing the opportunity of submitting a reply to the show cause notice after seeking time for four weeks and to submit an effective reply and declining to avail any personal hearing to one Show Cause Notice and by not responding to the other Show Cause Notice, it is not open for the petitioner to raise a ground that it was a case of no notice and no opportunity of hearing. In view of the fact that an adequate, efficacious and statutory remedy has already been provided to assai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 61 of AGST Act, 2017 stood issued to it by the respondent no. 4 on 03.04.2023, followed by Form GST ASMT- 10 under Rule 99[1] of corresponding rules on 04.04.2023. By the said Show Cause Notice, the petitioner was directed to explain the reasons for the discrepancies noticed regarding excess ITC claim of Rs. 45,07,221.34 during the scrutiny of the return for the tax period from April, 2022 to March, 2023. In response to the said Show Cause Notice, the petitioner submitted a reply in Form GST ASMT-11 on 10.04.2023. 4. Thereafter, the respondent no. 3 on 08.04.2024 had issued a Demand cum- Show Cause Notice under Section 74[1] of the AGST Act, 2017 for the periods : 2022-23 and 2023- 24 and a Summary of Show Cause Notice dated 09.04.2024 in Form GST DRC-01 under Rule 100 [2] and Rule 142 [1] [a] of the corresponding rules stating that the petitioner had claimed two erroneous refunds amounting to Rs. 1,11,23,972/- during the year : 2022-23 and 2023- 24 in the following manner :- [i] On 23.09.2022, the taxpayer claimed a refund of Rs. 34,30,591/- for the tax period from October 2021 to August 2022 by stating the reason of refund as Refund of ITC on export goods and services withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60,000/- under CESS]. [ii] On 13.03.2024, the taxpayer claimed another refund of Rs. 76,93,381/- for the tax period from September, 2022 to February, 2024 by stating the reason as Refund of ITC on export goods and services without payment of tax . Consequently, the refund was sanctioned on 13.03.2024 for Rs. 76,93,381/- [Rs. 34,03,781/- under IGST + Rs. 37,000/- under CGST + Rs. 37,000/- under SGST + Rs. 76,93,381/- under CESS]. 7.1. The respondent no. 3 had further mentioned that upon verification, it was found that the petitioner claimed ITC fraudulently without receiving appropriate ITC during the period from March, 2022 to February, 2024 against which the refund was claimed. 8. The Order-in-Original under Section 74 came be passed by the respondent no. 4 as the Adjudicating Authority on 06.09.2024 with a demand of Rs. 2,41,78,961/- as tax, interest and penalty for the period from April, 2022 to March, 2024 and the petitioner had been directed to make payment by 06.10.2024 failing which proceedings would be initiated against the petitioner to recover the outstanding dues. 9. Heard Ms. N. Hawelia, learned counsel for the petitioner and Mr. B. Gogoi, learned Standing Counsel, Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to revenue when an alternative, efficacious, adequate and statutory remedy is available to the assessee, a writ petition under Article 226 of the Constitution of India is not ordinarily to be entertained unless the petitioner has been able to make out an exceptional case. It is his contention that the petitioner has not been able to make out an exceptional case here to entertain this writ petition. Mr. Gogoi has further submitted that after receipt of the Demand cum- Show Cause Notice, the petitioner by submitting a reply had sought time for four weeks to enable it to go through the documents and records at its disposal and thereafter, to submit an effective reply. But, after approaching the Adjudicating Authority with such reply, the petitioner did not revert back to the Adjudicating Authority to submit its reply traversing the contentions raised in the Demand cum- Show Cause Notice. He has further submitted that in the reply so submitted, the petitioner had himself stated that the petitioner did not need any personal hearing. It is his contention that it is not a case of not providing an opportunity of being heard and as such, the petitioner s case is not a case of viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner seeking time, the Adjudicating Authority did not apprise the petitioner about the next date of hearing in connection with the Demand cum- Show Cause Notice under reference. The petitioner, in its reply submitted after the Demand cum- Show Cause Notice, had itself mentioned that it would not avail the opportunity of personal hearing. Prima facie the case is not one which falls in the category of no notice and no opportunity of hearing. There is a distinction between a case where there is total violation of the rule of audi alteram partem with no notice and no opportunity of hearing and a case where there is violation of a facet of the rule of audi alteram partem in that the assessee was not afforded any adequate and effective notice and/or proper opportunity of hearing. It does not emerge from the facts of the case that the petitioner was not provided with any kind of prior opportunity and hearing before issuance of the impugned Order-in-Original. 16. In the case in hand, it is not the case of the petitioner that the petitioner did not receive the Demand cum- Show Cause Notices. On receipt of the Demand cum- Show Cause Notices, the petitioner ought to have replied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the remaining amount of tax in dispute arising from the said order, subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed. 18. As regards the contention advanced on behalf of the petitioner that a composite order have been passed for two financial years and the same was in violation of Section 74 of the AGST Act, 2017, this Court is of the prima facie view that the contention is misconceived as an Adjudicating Authority has the jurisdiction to pass such a composite order. Rather than a composite order, an order for each financial year would have facilitated a better adjudication but a composite order passed by the Adjudicating Authority cannot be said to have been passed without jurisdiction. In any view of the matter, it is open for the petitioner to raise all such issues in a statutory appeal before the Appellate Authority. 19. In view of the fact that an adequate, efficacious and statutory remedy has already been provided to assail an order like the Order-in-Original dated 06.09.2024 before the Appellate Authority, this Court is of the view that this writ petition preferred under Article 226 of the Constitution of India is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been freezed, had deposit[s] equivalent or more than amount required to be deposited in terms of Section 107 [6] [b] of the Act of 2017. It was further observed therein that in the eventuality the amount lying in the freezed account[s] mentioned in the show cause notice was/were not equivalent for the pre-deposit in terms of Section 107 [6] [b] of the Act of 2017, the petitioner therein was permitted to deposit additionally so much of the amount before the Appellate Authority so as to fulfill the mandate under Section 107 [6] [b] of the Act of 2017. 23. As the case of the petitioner herein appears to be similarly situated with the petitioner in the writ petition, W.P.[C] no. 4694/2024, this Court is of the considered view that while not entertaining the writ petition, the same can be disposed of with the following observations and directions balancing the equities and for the interest of justice as well as having regard to the fact that the bank account[s] of the petitioner has/have remained freezed and unoperational since 02.04.2024, a date prior to issuance of the Demand cum- Show Cause Notice dated 08.04.2024 :- [i] If the account[s] of the petitioner, as mentioned in the Demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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