Writ Petition under Article 226 cannot be entertained as alternative remedy unless there is exceptional circumstances

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Writ Petition under Article 226 cannot be entertained as alternative remedy unless there is exceptional circumstances

Writ Petition under Article 226 cannot be entertained as alternative remedy unless there is exceptional circumstances

Article 226 of the Constitution of India: A writ Petition under Article 226 of the Constitution of India cannot be entertained if an alternative efficacious remedy is available unless the petitioner shows exceptional circumstances

The Assistant Commissioner of State Tax & Ors. Vs. M/S Commercial Steel Ltd.; Civil Appeal No. 5121 of 2021; 03.09.2021

Facts:

The respondent, a proprietary concern engaged in the business of iron and steel and is registered under the Central Goods and Services Tax Act 2017 and has been allotted a GST code. The respondent purchased certain goods from a dealer, JSW Steel Limited, Vidyanagar, Karnataka, under a tax invoice dated 11 December 2019. The consignment of goods was being carried in a truck bearing registration No KA 35 C 0141. While it was proceeding from the State of Karnataka, it was intercepted on 12 December 2019 at 5.30 pm at Jeedimetala. The tax invoice indicated that the goods were earmarked for delivery at Balanagar, Telangana. The Revenue was of the opinion that in the guise of an inter-State sale, the respondent was attempting to sell the goods in the local market by evading SGST and CGST.

An order of detention was issued in Form GST MOV-06 on 12 December 2019 and a notice was served on the person in charge of the conveyance. The respondent paid the tax and penalty, following which the goods and the conveyance were released on 13 December 2019. However, the respondent instituted writ proceedings under Article 226 of the Constitution before the High Court in order to challenge the order of detention dated 12 December 2019 and the notice which was issued under Section 20 of the IGST Act 2017 seeking refund of tax. The High Court entertained the writ petition and ordered the refund of the amount collected towards tax and penalty together with interest.

Appellant’s contention:

The respondent had a statutory remedy under section 107 of the CGST Act. Instead of availing of the remedy, the respondent instituted a petition under Article 226.

Observations by this Court:

  • The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.
  • In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance.
  • In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority.

Held:

In view of the aforesaid, the bench allowed the appeal and set aside the impugned order of the High Court. In terms of the present order, the writ petition filed by the respondent shall stand dismissed. However it was observed and directed that this shall not preclude the respondent from taking recourse to appropriate remedies which are available in terms of Section 107 of the CGST Act to pursue the grievance in regard to the action which has been adopted by the state in the present case.

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