[Cites 2, Cited by 0]
Orissa High Court
M/S. Shark Mines & Minerals Pvt vs The Chief Commissioner Of Gst & on 11 December, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.32590 of 2025
M/s. Shark Mines & Minerals Pvt. .... Petitioner
Ltd.
Mr. Bigyan Kumar Sharma, Senior Advocate
along with Ms.Itishree Tripathy, Advocate
-versus-
The Chief Commissioner of GST &
Central Excise, Bhubaneswar and
another .... Opposite Parties
Mr.Sujan Kumar Roy Choudhury,
Senior Standing Counsel, GST & Central Excise
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 11.12.2025
01. 1. Assailing the Demand-cum-Show Cause Notice (for short
"SCN") dated 17.09.2025 issued by the Assistant Commissioner
of GST & Central Excise, Bhubaneswar-1 Division,
Bhubaneswar issued under Section 73 of the Central Goods and
Services Tax Act/the Odisha Goods and Services Tax Act, 2017
(Collectively, "GST Act"), pertaining to the financial year 2021-22,
the petitioner has questioned the veracity and tenability of said
notice in the present writ petition.
2. Mr. Bigyan Kumar Sharma, learned Senior Advocate along
with Ms. Itishree Tripathy, learned Advocate appearing for the
petitioner submitted that upon scrutiny of returns alleging
availment of ineligible input tax credit on account of non-
furnishing of returns in GSTR-3B by the supplier, the SCN has
been issued. It is contended by Mr. Sharma, learned Senior
Advocate that the action of the authority concerned is arbitrary
inasmuch as no fault could be attributed to the petitioner who
happens to be bona fide recipient of supply of goods and
services, such SCN is only to deny the legitimate claim of the
petitioner to avail the benefit of input tax credit contemplated
under Section 16 of the GST Act.
2.1. It is vociferously argued that the clarification as furnished to
the proper officer on 29.05.2025 in response to notice in Form
GST ASMT-10 dated 30.04.2025 having not been taken into
account in proper prospective while issuing demand-cum-show
cause notice dated 17.09.2025, it is argued that impugned SCN is
vitiated being bereft of application of mind.
3. Mr. Sujan Kumar Roy Choudhury, learned Senior Standing
Counsel for CGST opposing the entertainability of the writ
petition, submitted that the SCN issued by the Assistant
Commissioner of GST & Central Excise, Bhubaneswar-1
Division, Bhubaneswar cannot be said to be without authority in
law as the said Proper Officer has the competence to initiate the
proceeding under Section 73 of the GST Act. He further urged
that it is not the case of the petitioner that the authority concerned
lacked jurisdiction. He fervently prayed not to entertain the writ
petition in favour of the petitioner, as he has an opportunity to
furnish reply to the said SCN before the proper officer.
4. Heard Mr. Bigyan Kumar Sharma, learned Senior Advocate
along with Ms. Itishree Tripathy, learned Advocate for the
petitioner and Mr. Sujan Kumar Roy Choudhury, learned Senior
Standing Counsel for GST and Central Excise Department.
5. Perusal of the record reveals that copy of the GST ASMT-10
is enclosed to SCN. Paragraph-4.0 of the said SCN reveals that
the petitioner is "called upon to show cause to the Assistant
Commissioner of GST and Central Excise, Bhubaneswar-1
Division, Plot No.258, District Centre, Chandrasekharpur,
Bhubaneswar-751016, Odisha".
6. In the case of Mitambini Mishra Vs.Union of India and
others, W.P.(C) No.8492 of 2022, vide judgment dated
26.07.2022 rendered by this Court, in the context of challenge
being made by way of writ petition to the SCN for adjudication
of liability under the GST Act, referring to Union of India Vrs.
Coastal Container Transporters Association, (2019) 20 SCC 446;
Commissioner of Income Tax Vrs. Chhabil Dass Agarwal, (2014)
1 SCC 603 = 2013 SCC OnLine SC 717 = (2013) 357 ITR 357
(SC); Star Paper Mills Ltd. Vrs. State of U.P., (2006) 10 SCC
201 = 2006 SCC OnLine SC 979; South India Tanners & Dealers
Association Vrs. Deputy Commissioner of Commercial Taxes,
(2008) 23 VST 8 (SC); Bhubaneswar Development Authority Vrs.
Commissioner of Central Excise, 2015 SCC OnLine Ori 53;
National Aluminium Company Ltd. Vrs. Employees State
Insurance Corporation, 2012 SCC OnLine Ori 90, declined to
entertain writ petition. Basing on the ratio of said judgment, this
Court is not inclined to entertain this writ petition seeking to
challenge the SCN for adjudication of liability under Section 73
of the GST Act. However, liberty is reserved to the petitioner to
submit reply within a period of two weeks hence, in response to
the SCN whereby it is instructed to the petitioner for furnishing
reply to the Assistant Commissioner of GST & Central Excise,
Bhubaneswar, if in the meantime, the proceeding as initiated
under Section 73 of the GST Act has not been culminated in final
order. In the event, the petitioner submits reply to the aforesaid
SCN within the period stipulated as above and adduce evidence,
if any, it goes without saying that the Proper Officer/Assistant
Commissioner of GST & Central Excise, Bhubaneswar-1
Division, Bhubaneswar shall consider the same and pass
appropriate order upon hearing the petitioner.
7. With the aforesaid observations and direction, the writ
petition along with the pending Interlocutory Application (s), if
any, stand disposed of.
(Harish Tandon)
Chief Justice
Signed by: BICHITRANANDA SAHOO
(M.S. Raman)
Reason: Authentication
Location: Orissa High Court, Cuttack
Judge
Bichi
Date: 12-Dec-2025 16:45:40
