Telangana High Court
M/S. Ase India vs The Union Of India on 21 November, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.32559 OF 2024
ORDER:
(per Hon'ble Sri Justice Sujoy Paul) Sri M.Umashankar, learned counsel for the petitioner and Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC for respondent Nos.2 to 4.
2. Heard on admission.
3. This writ petition filed under Article 226 of the Constitution of India assails the Order-in-Original('OIO')dated 09.09.2024 (Annexure P1).
4. Learned counsel for the petitioner submits that the petitioner was put to show cause notice dated 10.05.2024, wherein, the main allegation was that the petitioner, along with his 9 suppliers, entered into frivolous paper transactions without there being any movement of goods. The petitioner suffered an OIO on a different ground. In other words, it was repeatedly canvassed that the subject matter of show cause notice is different than the findings given in the final order/OIO.
5. We have heard learned counsel for the petitioner for sufficiently long time. It could not be established with accuracy and 2 precession that while issuing the OIO, the competent authority has travelled beyond the scope of the show cause notice. The next submission of learned counsel for the petitioner is that the impugned order is erroneous and the material evidence on record is not considered. The circular on which reliance is placed in the OIO cannot be pressed into service. By placing reliance on the Judgment of Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 1, it is submitted that despite availability of the statutory alternative efficacious remedy of appeal, since principles of natural justice are breached, petition may be entertained.
6. Learned Senior Standing Counsel for CBIC submits that the impugned order is appealable and all these aspects can be gone into in appeal.
7. Admittedly, the impugned order is appealable. The judgment of Whirpool Corporation (supra) was considered by the Hon'ble Supreme Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Another 2 and it was opined 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...."
(Emphasis Supplied) 1 (1998) 8 SCC 1 2 (2005) 8 SCC 264 3 In view of this judgment, it is clear that mere violation of principles of natural justice does not make it obligatory for this Court to entertain the writ petition. In other words, the aspect of "maintainability" and "entertainability" are different. Recently, the Supreme Court in its judgment dated 10.04.2024 in the case of PHR Invent Educational Society Vs. UCO Bank and Others 3 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. The Supreme Court opined that merely because a petition is maintainable, it is not necessary to entertain a petition. It is the discretion of the Court to entertain a petition and not a compulsion. The relevant paragraph reads as under:
"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 public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the 3 (2024) 4 S.C.R. 541 4 dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the Courts cannot be oblivious of the rules of self-imposed restraint evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, still it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution."
(Emphasis Supplied)
8. In the instant case, if argument of the learned counsel for the petitioner is accepted, the order impugned, at best, can be said to be erroneous order which can be subject matter of challenge in appeal. No jurisdictional error could be established. Since petitioner has an alternative statutory remedy, we are not inclined to entertain this petition.
9. Accordingly, the writ petition is disposed of by reserving liberty to the petitioner to avail the said remedy. It is made clear that this Court has not expressed any opinion on the merits of the case. No costs.
Interlocutory applications, if any pending, shall also stand closed.
_______________________ JUSTICE SUJOY PAUL _____________________________________________ JUSTICE NAMAVARAPU RAJESHWAR RAO 21.11.2024 sa/pvt