TMI Blog2021 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be considered and disposed of in the the light of and in accordance with the provisions of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating it. Thus, the observation of the learned Single Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order. Whether the appellant's case would fall under any one of the exceptions, which have been carved out by various decisions of the Hon'ble Supreme Court for exercise of jurisdiction under Article 226 of The Constitution of India, when there is a statutory appellate/revisional remedy available to the aggrieved person? - Violation of principles of Natural Justice - HELD THAT:- On a perusal of both the orders dated 30.1.2014 and 16.9.2014 respectively for the assessment years 2008-09 and 2013- 14 passed under the provisions of the Central Sales Tax Act, 1956 (for short, the CST Act), we find that the Assessing Officer had issued the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Government Advocate accepting notice for the respondents 2. This appeal filed by the appellant - dealer is directed against the order dated 19.11.2020 made in W.P.No.32257 of 2015, which was dismissed along with two other connected matters in W.P.Nos. 33878 and 33879 of 2015 challenging the orders 30.1.2014 and 16.9.2014 levying penalty respectively for the assessment years 2008- 09 and 2013-14 as well as the consequential garnishee orders. 3. W.P.No.32257 of 2015 was filed by the dealer challenging the order dated 06.3.2015 passed by the first respondent First Appellate Authority, who partly confirmed the orders of the second respondent Assessing Officer levying penalty respectively for the assessment years 2008-09 and 2013-14. The learned Single Judge did not go into the merits of the matter, but dismissed all the three writ petitions on the ground that the Court could not exercise its jurisdiction under Article 226 of The Constitution of India. 4. The learned Single Judge placed reliance on the decision of the Hon'ble Supreme Court in the case of ACCT, LTU, Kakinada Vs. Glaxo Smith Kline Consumer Health care Ltd. [reported in 2020 (36) GSTL 305] and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. ...... 19........ Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 6. On a reading of the above extracted paragraphs, it is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 11B of the Central Excise Tax Act and for such a reason, the power under Article 226 of The Constitution of India has to be exercised to effectuate rule of law and not for abrogating it. 9. In the light of the above, we have no hesitation to hold that the observation of the learned Single Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order. 10. Next we go to the merits of the matter, as we are required to see as to whether the appellant's case would fall under any one of the exceptions, which have been carved out by various decisions of the Hon'ble Supreme Court for exercise of jurisdiction under Article 226 of The Constitution of India, when there is a statutory appellate/revisional remedy available to the aggrieved person. One such factor, which would be taken into consideration for exercising jurisdiction is as to whether there has been violation of the principles of natural justice. 11. In this regard, we have elaborately heard Mr.Joseph Prabhakar, learned counsel appearing for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there has been a transfer of the officer and the new officer took over charge. This is also one more aspect, which should have weighed in the mind of the Assessing Officer to afford an opportunity of personal hearing because the officer, who completed the assessment, was not the officer, who made the proposal to levy penalty. 15. It is also seen that even in respect of the assessment year 2013-14, no opportunity of personal hearing was granted to the dealer. 16. Thus, we are of the considered view that the case of hand having fallen under one of the exceptional circumstances as mentioned above warranting exercise of jurisdiction under Article 226 of The Constitution of India and as the defect, which has occurred by levying penalty without affording an opportunity of personal hearing would go to the root of the very levy itself, we are inclined to interfere with the impugned order, the assessment orders and remand the matters to the Assessing Officer for a fresh consideration. 17. It is relevant to point out, at the risk of repetition, that W.P. No.32257 of 2015 was disposed of along with two other writ petitions namely W.P.Nos.33878 and 33879 of 2015, which pertain to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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