9911796707
TMI Blog2024 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... nd style of petitioner no. 1 with a Certificate of GST Registration no. 18DQKPB5879R1R. The petitioner has averred that the petitioner is entitled to Input Tax Credit [ITC] in respect of purchase of coal under the provisions of the Central Goods and Services Tax [CGST] Act, 2017/Assam Goods and Services [AGST] Act, 2017. The petitioner has contended that all the refunds were duly sanctioned and disbursed after causing full enquiry and the respondent no. 4 is the jurisdictional officer in so far as causing enquiry in respect of the assessment of the petitioner is concerned and the petitioner is entitled to get refund of ITC on zero-rated supplies made by it. 3. The petitioner has further stated that a Demand-cum-Show Cause Notice under Section 74 of the AGST Act, 2017 stood issued on 08.04.2024 followed by Form GST DRC-01 issued under Rule 100 [2] and Rule 142 [1] [a] of the corresponding rules on 09.04.2024. By the Demand-cum-Show Cause Notice, an amount of tax, interest and penalty amounting to Rs. 54,00,424/- had been demanded for the period from April, 2022 to March, 2023 with the allegation that the petitioner had claimed two erroneous refunds. In the Demand -cum- Show Cause N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted, the petitioner also sought re-fixation of the case of hearing after four weeks, but the Adjudicating Authority without giving any heed to the said prayer of the petitioner, had proceeded to pass the Order-in-Original under Section 74, impugned in this writ petition. 9. In response, Mr. Gogoi, learned Standing Counsel, Finance & Taxation Department has submitted that the petitioner has an adequate, efficacious and statutory remedy under Section 107 of the CGST/AGST Act, 2017. He has submitted that the law is settled that in case of matters pertaining to revenue when an alternative, efficacious, adequate and statutory remedy is available to the assessee, a writ petition under Article 226 of the Constitution of India is not ordinarily to be entertained unless the petitioner has been able to make out an exceptional case. It is his contention that the petitioner has not been able to make out an exceptional case here to entertain this writ petition. Mr. Gogoi has further submitted that after receipt of the Demand -cum- Show Cause Notice, the petitioner by submitting a reply had sought time for four weeks to enable it to go through the documents and records at its disposal and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptions to the rule of alternate remedy arise where : [a] the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; [b] there has been a violation of the principles of natural justice; [c] the order or proceedings are wholly without jurisdiction; or [d] the vires of a legislation is challenged. 13. In so far as the case in hand is concerned, it has not emerged that there was total violation of the principles of natural justice. The ground which is urged is that after submission of the reply by the petitioner seeking time, the Adjudicating Authority did not apprise the petitioner about the next date of hearing in connection with the Demand -cum- Show Cause Notice under reference. The petitioner, in its reply submitted after the Demand - cum- Show Cause Notice, had itself mentioned that it would not avail the opportunity of personal hearing. Prima facie the case is not one which falls in the category of no notice and no opportunity of hearing. There is a distinction between a case where there is total violation of the rule of audi alteram partem with no notice and no opportunity of hearing and a case where ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one month. A mandate is embedded in subsection [8] of Section 107 for the Appellate Authority to given an opportunity to the appellant of being heard. 15.1. A condition of pre-deposit is incorporated in sub-section [6] of Section 107 to the effect that no appeal shall be filed under sub-section [1], unless the appellant has paid - [a] in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and [b] a sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order, subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed. 16. In view of the fact that an adequate, efficacious and statutory remedy has already been provided to assail an order like the Order-in-Original dated 08.04.2024 before the Appellate Authority, this Court is of the view that this writ petition preferred under Article 226 of the Constitution of India is not to be entertained at this stage, reserving the liberty to the petitioner to avail statutory remedy of appeal under Section 107 of the CGST/AGST Act, 2017. It is accordingly observed. 17. The petitioner has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 2017. 20. As the case of the petitioner herein appears to be similarly situated with the petitioner in the writ petition, W.P.[C] no. 4694/2024, this Court is of the considered view that while not entertaining the writ petition, the same can be disposed of with the following observations and directions balancing the equities and for the interest of justice as well as having regard to the fact that the bank account[s] of the petitioner has/have remained freezed and unoperational since 05.04.2024, a date prior to issuance of the Demand -cum- Show Cause Notice dated 08.04.2024 :- [i] If the account[s] of the petitioner, as mentioned in the Demand -cum- Show Cause Notice dated 08.04.2024, have remained freezed and is/are still unoperational, the Appellate Authority shall permit the petitioner to file the statutory appeal and on filing of the said appeal by the petitioner, the Appellate Authority shall entertain that appeal without insisting for pre-deposit, subject to the condition that the account[s] which has/have been freezed [the details of which are mentioned in the Demand -cum- Show Cause Notice dated 08.04.2024], has/have deposit[s] equivalent or more than the amou ..... 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