Writ petitions against show cause notices are only entertained in cases of jurisdictional issues or violations of fundamental rights; otherwise, parties must respond to the notice and raise defenses.

JUDGMENT :

1. Heard learned counsel for the parties.

2. The challenge in this petition is to the show cause notice dated 5 April 2024 (Exhibit ‘A’) issued by the 4th respondent to the petitioner.

3. Mr. Hidayatullah, learned Senior Advocate for the petitioner, submitted that the show cause notice is based mainly on the statements referred to at Serial Nos.2, 3, 4, 5, 6, 13, 14 and 15 of paragraphs 12 of the impugned Show Cause Notice-cum-Demand Notice. He submitted that the above statements were mainly recorded in 2018-19 in the context of the Pre-GST regime. He submitted that, in any event, all the statements were not recorded during an enquiry or proceeding, either in the Central Goods and Service Tax Act or the Pre-CGST regime. He referred to the decision of the Co-ordinate Bench of this Court in the petitioner’s case decided on 3 December 2021 in Prakash Raghunath Autade Vs. Union of India, 2022 (380) E.L.T. 264 (Bom.) to submit that any statements recorded before the issue of any show cause notice cannot be regarded as those recorded during an enquiry or proceedings. Based on this decision and certain observations therein, Mr Hidayatullah contended that the statements which have been relied upon in the show cause notice constitute no evidence whatsoever; in fact, such statements are non-est. He submitted that no show-cause notice could have been issued based on such statements. He further submitted that apart from these statements, no other significant material is relied upon in the impugned show cause notice to sustain the same.

4. Accordingly, Mr. Hidayatullah submitted that the impugned show cause notice should be interfered with, and the respondents should be prohibited from proceeding further based on it.

5. Mr. Mishra, learned counsel for the respondents, pointed out that the review petition has already been filed against the decision relied upon. However, without prejudice, he submitted that the impugned show cause notice is not based only on the statements referred to by Mr Hidayatullah. Still, other materials on record were revealed during the investigation, based upon which the impugned show cause notice came to be issued.

6. Mr Mishra submitted that in any event, the issue of whether the above statements can be looked into or not and, further, the issue of the burden being on the revenue are matters which can always be decided in the adjudication of the show cause notice once a reply is filed by the petitioner raising all these and other permissible objections.

7. Mr Mishra accordingly submitted that this petition might not be entertained, leaving it open to the petitioner to raise all permissible defences in response to the impugned show-cause notice.

8. The rival contentions now fall for our determination.

9. At the outset, unless a case of the impugned show cause notice being ex-facie without jurisdiction is made out, we are usually not inclined or required to interfere at the stage of issue of the show cause notice. In this case, the impugned show cause notice does not attract the vices indicated in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1.

10. In Whirlpool (Supra), the Hon’ble Supreme Court has explained that writ petitions may be entertained against show cause notices where the Petitioner seeks enforcement of any of the fundamental rights, where there is a violation of the principles of natural justice, or where the order or proceedings are wholly without jurisdiction or vires of the Act, is challenged.

11. In Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 the Hon’ble Supreme Court has held that unless the High Court is satisfied that the show-cause notice was totally non-est in the eyes of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine. The writ petitioner should invariably be directed to respond to the s