TMI Blog2021 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is empowered to make such further enquiry, as may be necessary and pass such order as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against, but shall have no power to remand the case to the adjudicating authority that has passed the impugned order. However, contention of learned counsel for the petitioner is that the impugned order is not only cryptic but in sheer violation of the principles of natural justice. It is trite that alternative remedy is not a complete bar to the entertaining of writ petition filed for enforcement of any of the fundamental rights or where there has been a violation of principles of natural justice or where the order under challenge is wholly without ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE For the Petitioner : M/s Prateek Gattani and Rahul Sharma, Advocates For the Respondent : Mr. D.C.Raina, Advocate General with Mr. K.D.S.Kotwal, Dy. AG JUDGMENT SANJEEV KUMAR-J 1. The petitioner is aggrieved of and has called in question the refund rejection order passed by respondent No.1 on 02.12.2020 on the ground that the same besides being in utter disregard of the provisions of the Central Goods and Service Tax Act, 2017 [ the Act ] and the Rules framed thereunder, is also in violation of the principles of natural justice. 2. It is submitted that the petitioner having become entitled for refund of excess tax paid in term of Section 54 of the Act, submitted a refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that no opportunity of being heard was ever granted to the petitioner before passing the impugned order. The show cause notice issued to the petitioner was only with respect to his claim being barred by limitation and the same was explained by the petitioner by filing written response. The explanation tendered by the petitioner was accepted by respondent No.1. It is, thus, contended that once the claim of refund filed by the petitioner was found to be within time, it was incumbent upon respondent No.1 to put the petitioner again on show cause notice as to the merits of the claim, once it had proposed to reject the refund claim. 5. Learned counsel for the petitioner has invited our attention to Section 54 of the Act and Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was entitled to hearing before passing of the rejection order in terms of proviso to Rule 92(3) of he Rules of 2017, has been denied such opportunity and, therefore, the order impugned is fundamentally flawed and such order, which is passed in violation of the principles of natural justice and is violative of Article 14 of the Constitution of India is amenable to challenge by way of writ petition under Article 226 of the Constitution of India, availability of alternative remedy notwithstanding. We agree with the learned counsel for the petitioner. 9. It is trite that alternative remedy is not a complete bar to the entertaining of writ petition filed for enforcement of any of the fundamental rights or where there has been a violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitution law as they still hold the field. In view of the aforesaid, we are of the view that in the instant case where the petitioner has alleged violation of principles of natural justice, exercise of writ jurisdiction by this Court is not barred by availability of equally efficacious statutory remedy of appeal provided under Rule 107 of the Rule of 2017. 10. Admittedly, the claim for refund was initially sought to be rejected by respondent No.1 on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng been filed beyond limitation. 12. Viewed thus, impugned order of rejection of refund claim of the petitioner is not inconformity with the proposal made in the show cause notice that was served upon the petitioner when the adjudicating authority found it barred by limitation. The grounds on which the impugned order has been passed were never proposed to the petitioner nor was he ever given any opportunity to explain his position. It is, thus, clear case of violation of principle of natural justice as also proviso to Rule 92(3) of the Rules of 2017. In the similar set of circumstances, Madras High Court in the case R. Ramadas v. Joint Commissioner of C.Ex., Puducherry, 2021 (44) G.S.T.L. 258 (Mad.) observed thus:- 7. It is a settle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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