The respondent cannot make an order on a document which is post-SCN and reply and obtained post-SCN and reply.

W.P.No.33684 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.01.2023

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR

W.P.No.33684 of 2022

and W.M.P.No.33147 of 2022

M/s Garudalaya Transports

Rep. By its Partner,

K.Shankara Pandian,

No.1A, Sama Colony, Trichy Road,

Ramanathapuram,

Coimbatore – 641 045.

.. Petitioner

Vs

The Deputy Commissioner of GST & Central Excise,

Coimbatore III Division,

D.No.1441, LG Building, Trichy Road,

Coimbatore – 641 018.

.. Respondent

Writ petition filed under Article 226 of the Constitution of

India praying to issue a writ of certiorari calling for the records of

the Respondent by proceedings in C.No. V / 15 / 198 / 2021 S.Tax

ADJN dated 22.09.2022 and quash the same.

For Petitioner

: Mr.P.Saravana Sowmiyan

For Respondent

: Mr.Gajendran Ravi

for Mr.B.Ramana Kumar (CGSSC)

ORDER

Mr.P.Saravana Sowmiyan, learned counsel for writ

petitioner and Mr.Gajendran Ravi, learned counsel representing

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W.P.No.33684 of 2022

Mr.B.Ramana Kumar, learned Revenue counsel (CGSSC) who

accepts notice on behalf of the sole respondent are before this

Court.

2.

Owing to the short perimeter within which

captioned matter perambulates the main writ petition was taken up

with the consent of both sides.

3.

Short facts shorn of granular particulars are that

the writ petitioner firm is engaged in the business of operating

transport services (passenger transport) between Coimbatore and

Chennai; that according to the writ petitioner, the buses are not air-

conditioned; that in and by a notification dated 20.06.2012

(Notification No.25/2012) there is an exemption for non-air

conditioned buses but 'order dated 22.09.2022 bearing C.No.

V/15/198/2021 S.Tax ADJN' (hereinafter referred to as 'impugned

order' for the sake of convenience and clarity) came to be made

under Section 73 of Finance Act, 1994; that this impugned order

was preceded by a 'show cause notice dated 18.10.2021'

(hereinafter referred to as 'SCN' for the sake of convenience and

clarity); that the writ petitioner had responded to this SCN by way

of reply dated 20.12.2021; that the writ petition is predicated

primarily on the ground that post-SCN and reply, the respondent

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W.P.No.33684 of 2022

has obtained some material dated 26.08.2022 from a third party

and the impugned order has been made on that basis.

4.

The primary contention of learned counsel for

writ petitioner is post-SCN and reply on 18.10.2021 and 20.12.2021

respectively, a document which came into existence thereafter and

which was obtained by the respondent only on 26.08.2022 has been

made the basis for making the impugned order. Therefore, the writ

petitioner never had occasion to respond qua this document.

Learned counsel for writ petitioner draws the attention of this Court

to paragraph 13.5 of the impugned order, which reads as follows:

'13.5

In order to verify the

genuineness of the claim made by the service

provider regarding two buses owned by them were

having the facility of Air conditioner or non-air

conditioner, a reference made to M/s Redbus

(Online ticket booking agent) vide letter

C.No.V/15/190-2021-ST

Adjn

(DC)

dated

22.08.2022 and M/s Redbus vide their letter dated

26.08.2022 replied that “all the bookings made for

the Bus Operator (M/s Garudalaya Transport)

through their portal in FY 2016-17, were in the

category of AC bookings”.'

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W.P.No.33684 of 2022

5.

Responding to the above, learned Revenue

counsel submitted that it is well open to the respondent to collect

and rely on material in a legal drill under Section 73 of the Finance

Act, 1994.

6.

The issue is not collecting and relying on material

but it is making an order on a document which is post-SCN and

reply and obtained post-SCN