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TMI Blog2024 (12) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... or an adjudicating authority to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative 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 Notice. On receipt of the Demand cum- Show Cause Notice, the petitioner ought to have replied to the said Demand cum- Show Cause Notice. 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. The event of issuance of a show cause notice is a step towards taking a final decision in the matter by the competent authority. A tentative view taken in the process cannot be deemed to be the final view taken in the matter. It has not emerged that there was total violation of the principles of natural justice in the case in hand. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 further stated that a Demand cum- Show Cause Notice under Section 74 of the Assam GST Act, 2017 stood issued on 18.06.2024 followed by a Summary of the Order of Show Cause Notice dated 19.06.2024 in Form GST DRC-01 issued under Rule 100 [2] and Rule 142 [1] [a] of the corresponding Rules. By the Demand cum- Show Cause Notice, an amount of tax, interest and penalty had been demanded for the period from April, 2022 to March, 2023 with the allegation that the petitioner had claimed erroneous refund. In the Demand cum- Show Cause Notice, it was mentioned that on 12.08.2022, the petitioner claimed a refund of Rs. 45,16,525/- for the tax period from March, 2022 to July, 2022 by stating the reason of refund as Refund of ITC on export of goods and services without payment of tax . Consequently, the refund amount was sanctioned on 17.08.2022 for Rs. 45,16,525/- [Rs. 16,63,755/- under IGST + Rs. 3,36,805/- under CGST + Rs. 3,36,805/- under SGST + Rs. 24,79,160/- under CESS]. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter pertaining to revenue when an adequate, efficacious 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 submitted that in the case in hand, despite receipt of Demand cum- Show Cause Notice, the petitioner had neither approached the Adjudicating Authority to submit an effective reply nor sought for any further time to submit a reply. 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 violation of the principles of natural justice. Mr. Gogoi has further contended that the Adjudicating Authority after issuance of the Demand cum- Show Cause Notice, had waited for sufficient period of time and the impugned order was passed after elapse of a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of issuance of a show cause notice is a step towards taking a final decision in the matter by the competent authority. A tentative view taken in the process cannot be deemed to be the final view taken in the matter. The final view is dependent on the response received from the noticee and if the noticee is able to show sufficient cause as to why no action as contemplated under the show cause notice should be taken the final view may altogether be different. 12. Thus, from the above discussion, it has not emerged that there was total violation of the principles of natural justice in the case in hand. 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 with any notice and/or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolving similar issues, a co-ordinate bench of this Court has extended a benefit to the petitioner therein, who is similarly situated like the petitioner herein, by directing the Appellate Authority to permit the petitioner to file an appeal without pre-deposit, subject to the bank 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, 2017. Ms. Hawelia has, thus, submitted that similar benefit should be extended to the petitioner herein as its bank account has remained freezed since 05.04.2024. 16. In reply, Mr. Gogoi, learned Standing Counsel, Finance Taxation Department has submitted that such direction, as directed in the Jud gment 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. 17. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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