TMI Blog2023 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain this petition. Issue raised will also require consideration and the decision of Malladi Drugs and Pharma Limited makes it quite clear that the aspect of non-maintainability is on account of self-imposed limitations and the restraints on exercise of powers to issue a writ. The entertainability and maintainability of the writ being a distinct aspect, this Court issues the Rule. - HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT Appearance: For the Petitioner(s) No. 1 : Mr. SN Soparkar, Sr. Adv. with Uchit N Sheth(7336) For the Respondent(s) No. 1,2,3,4 : Ms Hetvi H Sancheti (5618) ORAL ORDER (PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI) 1. By way of this petition preferred under article 226 of the Constitution of India, the petitioner seeks the issuance of writ of mandamus for quashing and setting aside the show cause notice dated 30.11.2022 issued under section 74 of the Central/Gujarat Goods and Services Tax Act, 2017 ( the GST Act for short) on the ground that the same is without jurisdiction, arbitrary and illegal. 2. The petitioner is engaged in the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case may kindly be granted in the interest of justice for which act of kindness your Petitioner shall forever pray. 6. First notice had been responded to by the petitioner. Thereafter, another notice of 13.12.2021 has alleged that the petitioner was liable to pay tax on reverse charge basis, since road restoration work by the AMC was not a part of its sovereign function. This also was responded to by the petitioner and eventually the second respondent issued the notice in the form of GST DRC-01A asking the petitioner to pay tax on reverse charge basis on payment made to the AMC. The petitioner objected to such proposed demands by upholding Part B of Form GST DRC-01 and submissions made earlier were reiterated. 6.1. As averred, ignoring the submissions, the respondent proceeded to issue the show cause notice of 30.11.2022 under section 74 of the GST Act proposing to demand the tax with interest and penalty on the payments made to the AMC by referring to various provisions as also the definition of goods and services tax under Article 366(12A) of the Constitution of India. It is urged that the AMC does not supply any goods and services to the petitioner and the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent is that the department has completed the investigation and show cause notice has been issued, which is pending for adjudication before the competent adjudicating authority and the petitioner should exhaust alternative legal remedy and it seeks to rely on various decisions for the said purpose. 10. We have heard Mr. S.N.Soparkar, learned Senior Advocate appearing with Mr. Uchit Sheth, learned advocate for the petitioner. He has pressed into service the decision of the Apex Court in the case of Malladi Drugs and Pharma Limited vs. The Excise and Taxation Officer-cum-Assessing Authority and others passed in Civil Appeal No.5393 of 2010 , where the Apex Court was engaged in deciding two questions. One of them was whether the High Court was justified in declining interference on the ground of availability of alternative remedy of appeal to the appellant under section 33 of the VAT Act, which it had not pursued and second was whether to remit the writ petition to the High Court for hearing on merits and examine the correctness. As the first question has been answered in the negative, it was the case where the appellant had questioned the jurisdiction of Deputy Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to maintainability goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of entertainability is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. 11. On this issue, following authorities are sought to be pressed into service by Ms. Hetvi Sancheti, learned Standing Counsel for the respondents: a) In the matter before this Court in the case of M/s. Cera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted. 11. In the present case, the respondent had not registered itself and was not paying any excise duty on the products that it was manufacturing. The search conducted by the Department at the registered office and the factory premises of the respondent led to the recovery of certain material on the basis of which the Department was considering the matter. At that stage, a writ petition was filed in which an order was passed by the High Court on 28.11.2005 directing the appellant to decide whether the Department had jurisdiction to proceed in the matter before deciding any other issues on merits. As stated above, the provisions of the Act do not contemplate any such prima facie determination to be arrived at and requiring that a copy of such determination to be submitted to the concerned person and only thereafter to proceed in the matter. Nonetheless, since a direction was issued by the High Court, the Department in deference to such direction did consider the matter and by an Internal Order dated 15.03.2006 prima facie recorded an opinion that the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself was premature. 14. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the Civil Appeal 8609/2019 [ Diary No. 17005 of 2018] Commissioner of Central Excise, Haldia vs. M/s. Krishna Wax (P) Ltd. existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India and another vs. Guwahati Carbon Limited5, it was concluded; The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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