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TMI Blog2023 (7) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... as not afforded an opportunity of personal hearing before passing of the impugned order by the respondent. 3. The matter was listed for the first time before this Court on 19.07.2021. This Court on the said date had directed the respondent to place on record the photocopy of the proceeding sheets of the file within a period of two weeks from the date and the matter was adjourned to 09.08.2021. 4. The matter on 09.08.2021 was adjourned to 31.08.2021 and on the said date the counsel appearing for the respondent stated that the counter affidavit has been filed but the same was not on record. The respondent was directed to place the counter affidavit on record and the matter was adjourned to 07.12.2021. On 07.12.2021, the matter was adjourned to 05.05.2022 due to paucity of time. On 05.05.2022, none appeared for the respondent. Thus, the Court issued a notice to the respondent through the Standing Counsel and adjourned the hearing of this petition to 16.11.2022. 5. On 16.11.2022, a fresh notice was issued to the respondent and the matter was directed to be listed before the learned Registrar for completion of service and pleadings on 16.12.2022. On 16.12.2022, learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed without adhering to the procedure prescribed by the authorities. He further submits that the impugned order, even otherwise, is a non-speaking order and has failed to take into consideration the written reply to the Show Cause Notice filed on behalf of the petitioner. 9. Learned counsel for the respondent had taken this Court through the record of the proceedings held before the Adjudicating Authority. He submits that the applicability of principles of natural justice is not a rule of thumb or a straightjacket formula. He further submits that the present case is an admitted case where the petitioner has violated the provisions of the CGST Act. The petitioner had nothing more to argue than what was contended in the reply to the Show Cause Notice. The reply was considered by the Adjudicating Authority and a reasoned order had been passed and therefore, the petitioner cannot be allowed to contend that by not being granted an opportunity of personal hearing, the respondent has caused any prejudice to the rights of the petitioner, and same does not vitiate the principles of natural justice. Learned Counsel also relies upon the judgments passed by the Hon'ble Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjourned against notice issued vide reference no. ZDO70221026078S. Please appear on NA, at NA, at NA". 14. Concededly, no date was fixed by the respondent on 10.03.2021 and the email at the very best, was vague. The record of handwritten proceedings before the Adjudicating Authority, however, shows that the case was adjourned to 24.03.2022. On 24.03.2022, the petitioner appeared and submitted its reply. The petitioner on the said date was asked to file its reply on the GST portal. The petitioner is stated to have filed the said reply on the GST portal on the said date. 15. It is significant that the petitioner in its reply dated 24.03.2021 also stated that "it is submitted that any clarifications if required vis-avis aforementioned consultative Show Cause Notice dated 02.02.2021 will be appreciated. We also seek personal hearing in the matter". Surprisingly, the impugned order was passed the very next day and in relation to the request for personal hearing it was stated as under: "Several representatives of the TP appeared in office of the undersigned for dropping of the proceedings. The same is being considered as Personal hearing as sought by the Noticee in last line of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot mandatory. The Hon'ble Apex Court way back in the case of Rao Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh : AIR 1954 SC 322, had held that the thing which is required to be done in a particular manner has to be done in that manner alone. When the legislature mandates that an opportunity of a personal hearing is to be given to a party, the authorities cannot be allowed to contend to the contrary. The respondents' contention that no personal hearing is required to be given to the party, is contrary to the statute. This Court is of the opinion that the department could not have taken such stand contrary to statutory framework. This is also because no affidavit has been filed by the respondent taking such stand. 20. Be that as it may, we also fail to understand the reason for the Adjudicating Officer to observe that the visit of the representatives of the petitioners in the office of the Officer and the telephonic conversation, the Officer had with the proprietor of the petitioner, could be termed as equivalent to personal hearing. It is not the respondent's case that hearings were conducted in a virtual mode and, therefore, the personal hearing was granted over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncur with the view taken by the Hon'ble High Court of Bombay. The expression personal hearing or the opportunity of being heard is not a mere empty formality. The same also has to be a meaningful hearing. Moreover, when the law requires that the provisions of Section 75(4) and 75(5) of the CGST Act specifically require that an opportunity of hearing "shall" be granted where the request is received in writing, the same cannot be denied or be substituted by a telephonic conversation. It is also not a case of Revenue that the multiple adjournments were taken by the petitioner in order to delay the adjudication. 25. There is no cavil with the principles laid down by the Hon'ble Apex Court in the judgments relied upon by the respondent. In the decisions cited by the learned Counsel for the respondents, the Hon'ble Apex Court, had in the facts of those cases, concluded that the principles of natural justice were substantially complied with. It is also relevant to note that the decisions were not rendered in the context of statutes that expressly obliged the authorities to do a particular act in a particular manner. In these cases, the parties had complained about the violation of princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content of the notice and has, clearly, not considered various documents relied upon by the petitioner. 29. We are unable to appreciate the procedure adopted by the concerned Officer in the present case. The purpose of personal hearing is to enable the noticee to address its arguments after the reply is filed, whereas, in the present case, the telephonic conversation which the Officer had with the proprietor of the petitioner, even before the final reply was filed, has been construed as personal hearings, such behaviour is clearly not acceptable. The Officer seems to be in some sort of hurry to conclude adjudication prior to the end of Financial Year on 31.03.2021 and passed the order, the very next day of filing of the reply. As discussed above, the same is clearly not only in violation of statutory principles of the Act but also is clear violation of the principles of natural justice. Alternate remedy 30. Even though no reply has been filed and the matter has been dragged for almost two years on account of the respondent taking time to file the counter affidavit, it was contended by the learned Counsel for the respondent that the present writ petition ought not to be enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine manner. It is a self-imposed restriction on the exercise of power under Article 226 that the petitions are normally not entertained where the alternate remedy is effective and efficacious. The mere availability of alternate remedy, however, does not oust the jurisdiction of the High Court and will not make the writ petition as not maintainable. The availability of alternate remedy does not operate as a bar on the power of the High Court to exercise jurisdiction under Article 226 of Constitution of India. 34. The Hon'ble Apex Court in the recent decision in the case of Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and Others: 2023 SCC Online SC 95 held as under: "4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit 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." 35. Another aspect which is to be kept in mind is that the present writ petition was listed before this Court way back on 19.07.2021. No such objection seems to have been taken by the respondent pursuant to the direction to produce the record. The respondent, in order to justify its stand had also filed the record of the proceedings before this Court. The respondent, therefore, wasted almost two years of the judicial time in, firstly, on the pretext of seeking to place the Counter Affidavit, which was incorrectly claimed as filed on record, and secondly, by taking further time to file the said counter affidavit. The respondent, at this stage, after two years of the writ petition being fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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