The availability of an alternative statutory remedy, such as an appeal, bars the maintainability of a writ petition under Article 226 of the Constitution of India.

JUDGMENT

Ashok Kumar Gaur, J. - The instant petition has been filed by the petitioner challenging the order dated 5.9.2019 issued by the Assistant Commissioner (State Tax) Anti Evasion Rajasthan, Circle-2, Jaipur (hereafter 'the Assistant Commissioner'). The petitioner is also feeling aggrieved by recovery notice dated 9.9.2019. The petitioner has further sought a direction from this Court that classification adopted inline with GST Tariff under Tariff Heading No.401 is correct and GST Tariff Heading No.402 may not be made applicable.

2. Learned counsel for the petitioner was asked to satisfy this Court with regard to availability of alternative statutory remedy of filing an appeal under Section 107 of the Central Goods and Services Tax Act, 2017 (hereafter 'the Act of 2017').

3. Learned counsel for the petitioner submitted that the show cause notice under Sections 50 and 74 of RGST Act, 2017 was issued by the Assistant Commissioner and the same person was not 'proper officer' as per requirement under the GST Act. Learned counsel submitted that for GST Range-XXXI, jurisdiction of the State, was with Special Circle-Rajasthan, Jaipur, having the jurisdictional office, and as such, the show cause notice was issued by incompetent authority.

4. Learned counsel for the petitioner submitted that the Adjudicating Authority is also the same Authority which exercised the power of issuing show cause notice, and as such, the entire proceeding is nonest in the eye of law.

5. Learned counsel further submitted that the Appellate Authority which is provided under Section 107 of the Act of 2017, had directed search and seizure to be conducted as per his instructions, and as such, filing of an appeal, will be an illusory remedy. Counsel submitted that once the Appellate Authority has passed an order of search and survey, there will be element of bias, and as such, the remedy before the Appellate Authority, is no effective remedy.

6. Learned counsel for the petitioner placed reliance on the judgments reported in, [ Commissioner of Customs vs. Sayed Ali, (2011) 265 ELT 17 (S.C.)] , ( Orkay Silk Mills Limited and another vs. M.S. Bindra and Others, (1988) 33 ELT 48 (Bom)) , the order passed by the Coordinate Bench of this Court in SBCWP No.7052/2007 (M/s.Godrej Sara Lee Limited vs. The Asst. Commissioner of Commercial Taxes & Others) and other connected petition, decided by a common order dated 29.10.2007 and the order dated 28.01.2011 passed in SBCWP No.1237/2011 (Perfetti Van Melle India Pvt. Ltd. vs. State of Rajasthan & Others).

7. I have heard the learned counsel for the petitioner and perused the material available on record.

8. This Court finds that the order passed by the Assistant Commissioner dated 5.9.2019 is an appealable order under Section 107 of the Act of the 2017. Any person who feels aggrieved by any decision or order passed by the Adjudicating Authority, is required to file an appeal before the Appellate Authority within a period of three months. This Court further finds that the order which is assailed before this Court, can be assailed before the Appellate Authority. The grounds which have been urged before this Court, can always be raised by the petitioner before the Appellate Authority.

9. The reliance placed on the judgment passed by the Supreme Court in the case of Commissioner of Customs vs. Sayed Ali (supra), on reading the facts and ratio of the judgment passed by the Supreme Court, the order passed by the Customs, Excise & Gold (Control) Appellate Tribunal was under challenge before the Supreme Court. The facts before the Supreme Court were that assessee had felt aggrieved against the notice which was given to him for violation of provisions of the Customs Act and after filing an appeal before the Collector of Customs (Appeals), the appeal was decided and further the order was assailed before the next Appellate Authority.

10. This Court finds that the order of the Supreme Court though has considered the definition of 'proper off