| Oct-06-2021

Writ Petitions having alternative remedy not to be entertained if no violation of fundamental rights, excess jurisdiction/ delegation

In The Assistant Commissioner of State Tax and Others v. M/s Commercial Steel Limited [Civil Appeal No 5121 of 2021 dated September 03, 2021], the current appeal has been filed against the Judgment dated March 04, 2020 of the Hon’ble High Court of Telangana arising out of a writ petition filed under Article 226 of the Constitution, wherein it set aside the action of the Assistant Commissioner of State Tax (“the Appellant”) towards tax and penalty under the Central Goods and Services Tax Act 2017 (“the CGST Act”) and directed a refund to M/s Commercial Steel Limited (“the Respondent”).

The Appellant before the Hon’ble High Court contended that the Respondent’s vehicle was intercepted at “Jeedimetala” as the tax invoice indicated the delivery address to be in Balangar, Telangana which was between the state of Karnataka and Jeedimetala. The Respondent was attempting to sell the goods in a local market by evading Goods and Services Tax (“GST”), as a consequence to which, a notice along with an order of detention was issued in Form GST MOV-06 dated December 12, 2019.

The Hon’ble High Court in its judgment dated March 04, 2020 held that a “mere possibility of a local sale would not clothe the officials to take such an action” and there was no proof which could stipulate that an attempt was made by the Respondent to deliver the goods at a different place and to sell them in the local market evading GST.

The Hon’ble Supreme Court in the current appeal observed that the Respondent had a remedy under Section 107 of the CGST Act which provides for Appeal to Appellate Authority, instead of availing the same, it opted to institute a petition under Article 226 of the Constitution. Observed that although existence of an alternate remedy does not absolutely bar the maintainability of the writ petition, such petition can only be entertained in exceptional circumstances like that of breach of fundamental rights, violation of principles of natural justice, an excess of jurisdiction or challenge to the vires of the statute or delegated legislation.

Further noted none of those exceptions were established in the case at hand and neither was there a violation of Principle of natural justice since a notice was served to the person in charge of the conveyance.

Allowing the appeal and setting aside the order of the Hon’ble High Court of Telangana, the Hon’ble Supreme Court relegated the matter to the alternate remedy under Section 107 of the CGST Act.

(Author can be reached at info@a2ztaxcorp.com)

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