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TMI Blog2023 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2003 in the cities of Ahmedabad, Surat and Gandhinagar, Dahej SEZ and Dholera. It has its electricity distribution franchisee in different parts of Maharashtra and State of Uttar Pradesh. It is registered under the GST Act. 3. During the course of routine maintenance and network enhancement, the petitioner digs out tranches on public roads, which are maintained by Municipal Corporations, which includes Ahmedabad Municipal Corporation ("the AMC" for short). The dug out portion of the road and pavement is then reinstated/restored by the AMC for which the AMC recovers reimbursement of road reinstatement charges from the petitioner. The said charges are fixed per meter/area based on the type of the road, which are duly paid by the petitioner and they are accounted in the the ledger account of the AMC. 4. It is averred by the petitioner that it is statutorily entitled to open up the roads, if required, for laying or repairs or maintenance or distribution lines or work under sections 42 and 67 of the Electricity Act, which are relied on. 5. According to the petitioner, a notice from the Directorate General of GST (Intelligence) on 27.08.2021 requiring the petitioner to give the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. There is absolutely no element of supply involved in this transaction. The petitioner never requisitioned any service of the AMC. 7. On issuance of notice, Ms. Hetvi Sancheti, learned Standing Counsel appears for all the respondents. Affidavit-in-reply is filed by respondent No.2-Assistant Director of Directorate General of Goods and Services Intelligence, Ahmedabad Zonal Unit, Ahmedabad. 7.1. According to him, to maintain the underground power cable network, the petitioner digs up and opens up and excavates tranches on the public road under the jurisdiction of the AMC. These tranches are then restored, reinstated and then the AMC collects the road restoration charges from the petitioner in lieu of such restoration activity. 8. An inquiry was initiated by the officers of the Directorate General of Goods and Services Tax Intelligence, Zonal Unit, Ahmedabad revealing that the petitioner was not paying the GST on the road restoration charges paid to the AMC. According to the submission of the petitioner the restoration of the road is a function entrusted to the AMC under Article 243W of the Constitution of India and hence, it is exempted from the tax under Entry 4 of Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment orders passed by the said authority suffered from the illegality and impropriety. The Apex Court on the exercise of writ powers conferred by Article 226 of the Constitution has held and observed that certain orders passed by the High Courts holding the writ petitions as not maintainable, merely because alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of writ jurisdiction, which is a matter of concern. It has made a reference of Article 329 ordainment of other similarly worded articles in the Constitution. It held that while it is true that the writ powers, despite availability of remedy under the very statute, which has been invoked, ought not to be in a routine manner, yet the mere fact that the petitioner before the High Court in a given case, has not pursued the alternative remedy available to him. It cannot mechanically be construed as a ground of its dismissal. "It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adi Drugs and Pharma Limited vs. Union of India and another, (2020) 12 SCC 808. 12. In the case of M/s. Cera Sanitaryware Limited (supra) this Court had not entertained, the writ application challenging the notice of intimation in the Form GST DRC-O1A issued under section 74(5). It was held that the same being merely an intimation, it is upto the applicant whether the pay attention to such intimation or not and if he deems fit to ignore the same bearing in mind the consequence of further show cause notice, in any view of the matter, any such notice, when is issued, an opportunity of hearing is to be given to the writ application. 12.1. This is a decision of this Court, which has been placed into service for the purpose of pressing the point that the issuance of show cause notice may not be the ground for the Court to entertain the petition. 13. The case of Krishna Wax Private Limited (supra) rendered by the Apex Court is also emphasized upon by the learned counsel. She has also urged that section 11A of the Central Excise Act is pari materia similar to what is presently being pressed into service by the petitioner in the present petition. She has, therefore, urged that the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which must be communicated to the concerned person, the Department was justified in not communicating the Internal Order on its own. The matter was correctly assessed by the High Court on the next occasion when in spite of having directed that a copy of the Internal Order be supplied, it acknowledged that the remedy of the respondent lied in submitting reply to the show cause notice, in which reply it would be open to the respondent to take objections to the jurisdiction of the appellant to proceed against the respondent under the provisions of the Act. 12. The communication of the Internal Order dated 15.03.2006 was only in deference to the order passed by the High Court. At the cost of repetition, it must be stated that neither the Act contemplates any such prima facie determination which must be communicated only whereafter the proceedings could be initiated nor was such course undertaken by the Department on its own. Therefore, merely because the Internal Order was communicated to the respondent, it would not afford the respondent a cause of action to file an appeal against said Internal Order. The communication of said Internal Order was only in obedience of the directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court... ...in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice." 14. In the case of Malladi Drugs and Pharma Limited (supra), the Apex Court has found that the appellant was a bulk drug manufacturer and used platinum catalyst. A show cause notice was issued as to why not to pay the duty. The reply was filed to the said show cause notice and then the writ petition was preferred. On the ground that the High Court's order was passed way back in the year 1997, neither party knew whether the department had proceeded further and whether any order had been passed pursuant to the show cause notice. The Court held that the High Court was right in dismissing the writ petition against a mere show cause notice. 15. Considering the submissions of both the sides and also noticing the issue raised before this Court, we are of the opinion that mere ground of alternative remedy being available will not be the reason for this Court to not entertain this petition. 16. Issue raised will also require consideration and the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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