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2021 (1) TMI 101 - HC - GSTMaintainability of petition - availability of alternative remedy - Delegation of powers by the commissioner - Provisional attachment - Proceedings initiated u/s 83 - petitioner admits that there is alternate remedy available, but contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions - HELD THAT:- It is not in dispute that respondent No.3 and the Divisional Commissioner, who has been appointed as Commissioner (Appeals) under the GST Act, are constituted under the Act and therefore, it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority, which is competent to pass the order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision. The Hon’ble Supreme Court has in one of its latest judgments in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law. Thus, what can be deduced from the aforesaid exposition of law is that the Hon’ble Supreme Court has recognized some exception to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principles of judicial procedure or has resorted to invoke the provisions, which are repealed or where an order has been passed in total violation of the principle of natural justice, but the High Court will not entertain a petition under Article 226 of the Constitution of India, if efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken in mechanism for redressal of grievance still holds the field. Meaning thereby, that when a statutory form is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. Thus, the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable. Lastly and importantly, we find that the writ petition filed by M/S GM POWERTECH AND OTHERS VERSUS STATE OF H.P. & OTHERS [2020 (12) TMI 482 - HIMACHAL PRADESH HIGH COURT], the company against whom same and similar allegations, as have been levelled against the petitioner herein, being CWP No. 5462 of 2020, has not been entertained and the company has been relegated to avail of the alternative remedy. The present petition is dismissed.
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