THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE SRI JUSTICE K.SARATH WRIT PETITION No.30968 OF 2024 ORDER: (per Hon’ble sri Justice Sujoy Paul)

Ms.K.Gayatri, learned counsel representing Sri S.Nagesh Reddy, learned counsel appearing for the petitioner and Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC, appearing for respondent Nos.2 to 4.

2. Heard on admission.

3. The petition filed under Article 226 of the Constitution of India takes exception to the Order in Original, dated 29.09.2023 (OIO).

4. Learned counsel for the petitioner fairly submits that although the order is appealable, this petition may be directly entertained because the reply to the show-cause notice has not been considered by the Department. The petitioner has not been given three opportunities of personal hearing. The OIO was not uploaded in the portal as required under Rule 142 (5) of the Central Goods and Services Tax Rules, 2017. In support of her submission, reliance is placed on Division Bench order of Madhya Pradesh High Court in Akash Garg v. State of M.P.

1 MANU/MP/1463 2020

5. Learned Standing Counsel for CBIC opposed the prayer and submits that order is appealable.

6. On a specific query from the Bench, learned counsel for the petitioner drawn our attention to the reply to the show- cause notice (Annexure P.5). A careful reading of this reply and more particularly, the ‘subject’ shows that it is not reply to the main show-cause notice, instead, it is reply to the notice relating to the date of personal hearing. Thus, we are unable to accept the said contention for the purpose of short circuiting the appellate proceedings. The other arguments are relating to procedural impropriety. No argument is advanced, which goes to the root of the matter and raised an objection relating to the competence/jurisdiction of the authority. The Madhya Pradesh High Court in Akash Garg’s case supra did not deal with the question of alternative remedy. In view of judgment of Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, [(1998) 8 SCC 1], there is no doubt that despite availability of statutory alternative remedy, the writ petition can be entertained on certain parameters including on violation of principles of natural justice. However, this judgment of Whirlpool Corporation (supra) was further considered by the Supreme

Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey3 and it was

held as under:

“17. …But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute….”

7. In view of the said judgment, it is clear that mere breach of natural justice is not sufficient to entertain a petition, unless, it shows that the order itself was without jurisdiction and if petitioner is relegated to avail alternative remedy, it will cause palpable injustice to him. No such ingredient is available in this petition.

8. The Supreme Court in its recent judgment in PHR Invent Educational Society v. UCO Bank, [(2024) 4 S.C.R. 541] disapproved the order of Telangana High Court in W.P.No.5275 of 2021, dated 04.02.2022, wherein a Division Bench of this Court entertained a Writ Petition despite availability of alternative remedy and opined that writ petition of this nature at best can be said to be “maintainable”, but, there exists no compulsion on the Courts to entertain it. Thus, the relevant portion reads as under:

3 (2005) 8 SCC 264

“15. It could thus be seen that, this Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of