The court emphasized the mandatory nature of granting an opportunity of hearing as per the statutory provisions of the CGST Act and reiterated that the availability of an alternate remedy does not bar the exercise of jurisdiction under Article 226 of the Constitution of India.

JUDGMENT

Amit Mahajan, J.

1. The present petition has been filed, inter alia, seeking setting aside of the demand order dated 25.03.2021, passed by the respondent under Section 74(9) of the Central Goods and Services Tax, 2017 (hereafter `the CGST Act'), raising a total demand of Rs.6,67,74,062/-, which includes the tax amount of Rs.2,88,90,416/-, interest for a sum of Rs.89,93,230/-, and penalty to the tune of Rs.2,88,90,416/-for the tax period of April 2018 to March 2019 (hereafter `the impugned order').

2. The petitioner has challenged the impugned order principally on the ground that the same has been passed in gross violation of the principles of natural justice as the petitioner was 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 the respondent appeared and once again stated that the counter affidavit has already been filed but the same was not on record. The learned Registrar then directed the respondent to take up the matter with the Registry and get the counter affidavit placed on record within a period of four weeks from the date and adjourned the matter to 29.03.2023. On 29.03.2023, a request was made by the learned counsel appearing for the respondent seeking six weeks' time to file a counter affidavit. The learned Registrar, in view of the request made, adjourned the matter to 03.07.2023. On 03.07.2023, surprisingly, the learned counsel for respondent stated that they do not wish to file any counter affidavit and will rely on the documents already filed. Thereafter, the matter was directed to be listed before this Court on 11.07.2023.

6. Learned counsel appearing for the respondent submits that the matter can be argued without the counter affidavit by relying on the documents already filed before this court.

Arguments

7. Learned counsel for the petitioner submits that the impugned order has been admittedly passed without granting any personal hearing to the petitioner. He states that the petitioner has been mulcted with a huge demand of tax along with the penalty, without affording the petitioner any opportunity of hearing. He relies upon the judgment passed by the High Court of Madras in Amman Match Company v. Assistant Commissioner of GST & C. Ex. Madurai, 2018 (363) E.L.T. 120 (Mad.); judgments passed by the Bombay High Court in BA Continuum India Pvt. Ltd. v. Union of India and Others, W.P (L) No. 3264/2020 on 08.03.2021 and DBOI Global Service Pvt. Ltd. v. Union of India, 2013 (29) S.T.R 117 (Bom.) in support of his contention that the orders passed without affording any opportunity of personal hearing are liable to be set aside.

8. He further relies on the circular dated 10.03.2017 issued by the Government of India through the Ministry of Finance, which was addressed to all Principal Chief Commissioners. The said circular specifically instructs that at least three opportunities