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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 ..... a Certificate of GST Registration no. 18BMGPM0289L3Z1. The petitioner has averred that the petitioner is entitled to Input Tax Credit [ITC] in respect of purchase of coal under the provisions of the Central Goods and Services Tax [CGST] Act, 2017/Assam Goods and Services [AGST] Act, 2017. The petitioner has contended that all the refunds were duly sanctioned and disbursed after causing full enquiry and the respondent no. 4 is the jurisdictional officer in so far as causing enquiry in respect of the assessment of the petitioner is concerned and the petitioner is entitled to get refund of ITC on zero-rated supplies made by it. 3. The petitioner has stated that a Show Cause Notice under Section 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. 7. Thereafter, the respondent no. 4 on 12.08.2024 had issued a Summary of Show Cause Notice dated 12.08.2024 for the periods : 2022-23 and 2023-24 in Form GST DRC-01 under Rule 100 [2] and Rule 142 [1] [a] of the AGST Rules stating that the petitioner had claimed two erroneous refunds amounting to Rs. 34,30,591/- for the year : 2022-23 and Rs. 76,93,381/- for the year : 2023-24 in the following manner :- [i] On 29.09.2022, the taxpayer claimed a refund of Rs. 34,30,591/- for the year 2021-22 by stating the reason of refund as 'Refund of ITC on export goods and services without payment of tax'. Consequently, the refund was sanctioned on 29.09.2022 for Rs. 34,30,591/- [Rs. 15,70,591/- under IGST + Rs. 18,60,000/- 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 men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and as such, the action on the apart of the respondent authorities are clearly in violation of the provisions of the CGST/AGST Act, 2017. Ms. Hawelia has further submitted that the Demand -cum- Show Cause Notices were issued for two assessment years in block and such block show cause notices are not permissible under the law and as such, the impugned Order-in-Original passed by the respondent no. 4 as the Adjudicating Authority is non-est in law. 11. In response, Mr. Gogoi, learned Standing Counsel, Finance & Taxation Department has submitted that the petitioner has an adequate, efficacious and statutory remedy under Section 107 of the CGST/AGST Act, 2017. He has submitted that the law is settled that in case of matters pertaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thmal vs. the Superintendent of Taxes, Dhubri and others, reported in AIR 1964 SC 1419]. 14. The High Court also has the discretion to entertain or not to entertain a writ petition. Exceptions to the rule of alternate remedy arise where : [a] the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; [b] there has been a violation of the principles of natural justice; [c] the order or proceedings are wholly without jurisdiction; or [d] the vires of a legislation is challenged. 15. In so far as the case in hand is concerned, it has not emerged that there was total violation of the principles of natural justice. The ground which is urged is that after submission of the reply by 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 opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section [4] of Section 107 has provided that the Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of one month. A mandate is embedded in subsection [8] of Section 107 for the Appellate Authority to given an opportunity to the appellant of being heard. 17.1. A condition of pre-deposit is incorporated in sub-section [6] of Section 107 to the effect that no appeal shall be filed under sub-section [1], unless the appellant has paid - [a] in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and [b] a sum equal to ten per cent 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 conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e & Taxation Department has submitted that such direction, as directed in the Judgment and Order dated 18.09.2024 passed in the writ petition, W.P.[C] no. 4694/2024, can be made herein also with similar terms and conditions. 22. In the writ petition, W.P.[C] no. 4694/2024, the bank account of the petitioner therein stood freezed with issuance of a demand -cum- show cause notice under Section 74 of the Assam Goods and Service Tax Act, 2017. While not entertaining the writ petition, it was observed that if the account[s] freezed by the order of the Adjudicating Authority was still unoperational on account of the freeze, the Appellate Authority would permit filing of the appeal as well as to entertain the appeal without insisting on pre-deposit subject to the account[s] which had 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 depo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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