The court emphasized the necessity of exhausting statutory remedies before judicial intervention, stating that jurisdictional questions must be resolved through investigation by the appropriate authorities.

JUDGMENT :

M.S. SONAK, J.

1. Heard learned counsel for the parties.

2. The challenge in this Petition is to the show cause notice bearing No.DGGI/SZU/36-158/2022-23 dated 30 January 2023 (Exhibit-A) issued by the Directorate General of Goods & Services Tax Intelligence, Surat Zonal Unit.

3. Mr. Nankani, the learned Senior Advocate for the Petitioner, submitted that the Petitioner has entered into a licence agreement for the manufacture and sale of beer with the 4th Respondent (UBL). He submitted that the impugned show cause notice, notwithstanding the terminology used therein, proposes a tax on the supply of alcoholic liquor for human consumption. He further submitted that both under Section 9(1) of the Central Goods and Services Tax Act, 2017 (“CGST Act 2017”) and the Constitutional Scheme, no CGST or IGST could be levied on the sale of alcoholic liquor for human consumption by any authority other than the State Authority. Accordingly, he submitted that the impugned show cause notice is ex-facie without jurisdiction, being beyond the legislative and, consequently, the executive competence of the Central Government.

4. Mr. Nankani submitted that the Authority for Advance Ruling, in the matter of United Breweries Limited 2018 (18) C.S.T.L. 855 has ruled that the amounts earned and retained by bottlers such as the Petitioner herein are not liable to GST. He submitted that though this Advance Ruling was at the behest of UBL, since the Petitioner functions under a licence agreement from UBL, even the Petitioner is entitled to the benefit of this Advance Ruling. He submitted that such Advance Ruling binds the Respondents, and the issuance of the impugned show cause notice in breach of such Advance Ruling renders the impugned show cause notice ultra vires and without jurisdiction.

5. Mr. Nankani submitted that the production overhead charges for which the impugned show cause is issued do not amount to consideration for the supply of service/agreeing to do any act. Accordingly, he submitted that the impugned show cause notice suffers from a fundamental flaw of assuming a jurisdictional fact. He submitted that the impugned show cause notice warrants interference even for this reason.

6. Mr. Nankani submitted that the subject matter of the impugned show cause notice was, in fact, alcoholic liquor for human consumption. He submitted that this does not even amount to “goods for the supply of which any GST could be levied”. He, therefore, submitted that the impugned show cause notice suffers from the fundamental flaw of assuming a jurisdictional fact. For this reason, the impugned show cause notice is ultra vires and without jurisdiction.

7. Mr. Nankani finally relied on Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others , AIR 1999 SC 22 to submit that the bar of alternate remedy would not operate in a case where the authority against whom a writ is filed is shown to have had no jurisdiction or has usurped jurisdiction without any legal foundation.

8. For all the above reasons, Mr. Nankani submitted that this Petition may be entertained and that the impugned show cause notice should be interfered with.

9. Mr. Mishra, learned counsel for the Respondents, submitted that most of the contentions are based on factual premises that the Petitioner assumed to be true. He submitted that, in any event, the investigation into the factual aspect is imperative, without which the legal principles referred t