THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE DR. JUSTICE G. RADHA RANI WRIT PETITION No.29093 of 2024 ORDER: (Per Hon’ble Justice Sujoy Paul)

With the consent finally heard, Ms. Velanati Jyothirmai, learned counsel representing Sri Karan Talwar, learned counsel for the petitioner, Sri M. Srikanth Reddy, learned Senior Standing Counsel for CBIC and Sri B. Mukherjee, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, for respondent Nos.5 and 6.

2. The challenge is mounted in this petition filed under Article 226 of the Constitution to the Order-in-Original (OIO) No.54/2024-25-SEC-ADJN-JC (GST), dated 28.06.2024 (Annexure P-1). The brief facts necessary for adjudication of this matter are that the petitioner was served with a show-cause notice dated 31.05.2022 (Annexure P-2) for the period from July, 2017 to March, 2019. The petitioner filed detailed reply on 17.10.2022 (Annexure P-18). The competent authority did not agree with the stand taken by the petitioner in the said reply and passed the OIO dated 28.06.2024.

3. Ms. Velanati Jyothirmai, learned counsel for the petitioner by criticizing the impugned order submits that for the similar business activity when the petitioner was put to notice in previous year, the petitioner filed a detailed reply to the said show-cause notice and after getting satisfied with the said response of the petitioner, the previous similar notice was dropped. Categorical stand in this regard is taken in paragraph No.B.16 of the reply dated 17.10.2022. Reliance is placed on Goods and Services Tax entry No.66 of the Notification No.12 of 2017, dated 28.06.2017 (Annexure P-24), whereby the nature of activities undertaken by petitioner have been ‘exempted’. Reliance is also placed on paragraph No.C.11 of the said reply dated 17.10.2022, wherein reference is made to the earlier notice regarding ‘manpower supply services’ and after receiving reply, the said earlier notice was dropped.

4. The bone of contention of the learned counsel for the petitioner is that firstly the aforesaid categorical stand of the petitioner mentioned in paragraph Nos.B.16 and C.11 of the reply dated 17.10.2022 has not been considered in the impugned OIO. It is not the case of the department that the nature of activity of the petitioner has undergone change. In that event, there was no justification in treating the petitioner in a comparatively disadvantageous manner in the subsequent year when a notice for tax about similar activity in previous year was dropped. In any case, the ‘decision making process’ is polluted. In as much as, the specific stand taken by the petitioner in the reply to the show- cause notice has not been considered. This is a clear violation of the principles of natural justice. Secondly, it is argued by the learned counsel for the petitioner by taking this Court to paragraph No.17.3 (i) of the impugned OIO that the conclusion arrived at is founded upon the finding given in the show-cause notice. The show-cause notice always has a tentative character and allegations of it have to be considered after going through the reply of the petitioner. Thirdly, since the case of the petitioner is covered by aforesaid exemption notification No.12 of 2017, the impugned OIO is passed without any jurisdiction and justification. 5. In this view of the matter, the learned counsel for the petitioner submits that despite availability of alternate remedy, the present petition may be entertained. She placed reliance on the judgment of the Gujarat High Court in the case of Vadilal Gases Ltd. v. Union of India1

1 2016 (332) E.L.T. 625 (Guj.)

6. Faced with this Sri M. Srikanth Reddy, learned Senior Standing Counsel for CBIC submits that the petitioner has a statutory alternative remedy of appeal and therefore, this petition is liable to be rejected.

7. In rejoinder submissions, learned counsel for the petitioner submits that the appellate authority does not have power of remand under