Rajasthan High Court
M/S Shri Sharma Steeltech India Pvt. Ltd vs State Of Rajasthan ... on 13 August, 2024
Bench: Pankaj Bhandari, Praveer Bhatnagar
[2024:RJ-JP:34388-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 13170/2024
M/s Shri Sharma Steeltech India Pvt. Ltd., Having Its Registered
Office At Khasra No. 245/264, Village Bawari, Benad Road, Sarna
Doongar Industrial Area, Jaipur Through Its Authorized Signatory
Mr Sarwan Kumar Sharma.
----Petitioner
Versus
1. State Of Rajasthan, Department Of Commercial Taxes,
Kar Bhawan, Bhawani Singh Road, Ambedkar Circle, C-
Scheme, Jaipur, Rajasthan Through Commissioner.
2. Deputy Commissioner (State Tax), Commercial Taxes
Department, Circle - B, Enforcement Wing - Ii, Kar
Bhawan, Jaipur.
3. Union Of India, Through Its Secretary, Department Of
Revenue, Ministry Of Finance, North Block, New Delhi.
----Respondents
For Petitioner(s) : Mr.Vagish Kumar Singh assisted by
Ms.Sakshi Agarwal
For Respondent(s) : Mr.Sandeep Taneja, AAG with
Ms.Kinjal Surana - for respondent
Mr.Pawan Pareek - for respondent
No.3 - UOI
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
REPORTABLE:
13/08/2024
1. The petitioner has preferred this writ petition aggrieved by
non-consideration of the reply given pursuant to the notice given
under GST DRC-01A.
2. It is contended by learned counsel for the petitioner that as
per Rule 142(1A) of the Rajasthan Goods & Service Tax
[2024:RJ-JP:34388-DB] (2 of 6) [CW-13170/2024]
(RGST)/Central Goods & Service Tax (CGST) Rules, 2017 (for
short "Rules of 2017), notice is to be served and if reply is given
under Rule 142(2A) of the Rules of 2017, the authorities are
required to consider the reply before issuing show cause notice
under Rule 142(1)(a).
3. It is also contended that there is no provision under the
Rules or the Act for affording an opportunity of hearing. The
Calcutta High Court has interpreted the provisions and has held
that in pre show cause intimation also, the authorities are required
to afford an opportunity of hearing before issuing a show cause
notice under Rule 142(1)(a) of Rules of 2017. Reliance, in this
regard, has been made on the judgment passed by Calcutta High
Court in the case of Eden Real Estate Pvt. Ltd. & Anr. Vs. The
Senior Joint Commissioner of Revenue Kolkata South Circle,
WBGST & Ors.: WPA No.1025/2024 decided on 07th February,
2024 as well as on the judgment passed in the case of Diamond
Beverages Private Limited & Anr. Vs. The Assistant Commissioner
of CGST & CX, Taltala Division II Kolkata South Commissioner &
Ors.: M.A.T. 1948/2023 in I.A. No.CAN 1 of 2023 decided on
15th February, 2023.
4. It is contended by learned counsel for the petitioner that the
case before Calcutta High Court is not different from that of the
case before this Court and reply to the intimation was given in the
present case also, but the same has not been considered. The only
prayer made by learned counsel for the petitioner is that the
authorities may be directed to consider the reply filed by the
petitioner and then notice under Rule 142(1)(a) of the Rules of
2017 may be issued, if required.
[2024:RJ-JP:34388-DB] (3 of 6) [CW-13170/2024]
5. Learned Additional Advocate General has put in appearance
on advance notice.
6. It is contended by learned Additional Advocate General that
provision under the Rule 142(1A) of the Rules of 2017 only
provides for giving a communication, that too, is not mandatory,
as the word used is "proper officer may". It is also contended that
Rule 142(2A) of the Rules of 2017 provides that if a person
referred to in sub-rule (1A) has made partial payment of the
amount communicated to him or desires to file any submissions
against the proposed liability, he may make such submission in
Part B of FORM GST DRC-01A.
7. It is further contended that there is no provision under the
Rules for affording an opportunity of hearing or hearing the person
referred to in sub-rule (1A) of Rule 142 of the Rules of 2017. It is
contended that after a show cause notice is issued under Rule
142(1)(a) and reply of the same is received, there is a provision
for affording an opportunity of hearing, but there is no such
provision under Rule 142(1A) and Rule 142(2A) of the Rules of
2017.
8. Learned Additional Advocate General has placed reliance on
judgment passed by the Apex Court in the case of Commissioner
of Central Excise, Haldia Vs. Krishna Wax Private Limited:
(2020)12 SCC 572, relevant paragraphs of which are quoted
here under for ready reference:
"13. It must be noted that while issuing a show cause
notice under Section 11-A of the Act, what is
entertained by the Department is only a prima facie
view, on the basis of which the show cause notice is
issued. The determination comes only after a
response or representation is preferred by the person
[2024:RJ-JP:34388-DB] (4 of 6) [CW-13170/2024]
to whom the show cause notice is addressed. As a
part of his response, the concerned person may
present his view point on all possible issues and only
thereafter the determination or decision is arrived at.
In the present case even before the response could be
made by the respondent and the determination could
be arrived at, the matter was carried in appeal against
said Internal Order. The appellant was therefore,
justified in submitting that the appeal itself was
premature.
14. It has been laid down by this Court that the
excise law is a complete code in itself and it would
normally not be appropriate for a Writ Court to
entertain a petition under Article 226 of the
Constitution and that the concerned person must first
raise all the objections before the authority who had
issued a show cause notice and the redressal in
terms of the existing provisions of the law could be
taken resort to if an adverse order was passed
against such person. For example in Union of India v.
Guwahati Carbon Ltd., it was concluded; "The Excise
Law is a complete code in order to seek redress in
excise matters and hence may not be appropriate for
the writ court to entertain a petition under Article
226 of the Constitution", while in Malladi Drugs &
Pharma Ltd. vs. Union of India, it was observed:-
"...The High Court, has, by the impugned
judgment held that the Appellant should
first raise all the objections before the
Authority who have issued the show cause
notice and in case any adverse order is
passed against the Appellant, then liberty
has been granted to approach the High
Court......in our view, the High Court was
absolutely right in dismissing the writ
petition against a mere show-cause
notice."
15. It is thus well settled that writ petition should
normally not be entertained against mere issuance
of show cause notice. In the present case no show
cause notice was even issued when the High Court
had initially entertained the petition and directed the
Department to prima facie consider whether there
was material to proceed with the matter."
9. It is also contended that the judgments referred to by
learned counsel for the petitioner are on different facts, as in
those cases, show cause notice was issued and in the present case
[2024:RJ-JP:34388-DB] (5 of 6) [CW-13170/2024]
before this Court, show cause notice has not yet been issued to
the petitioner.
10. We have considered the contentions made by learned
counsel for the parties.
11. A plain reading of Rule 142(1A) and 142(2A) of the Rules of
2017 would go to show that it is discretionary for the proper
Officer to either issue communication or not to do so. However, in
the present case, a communication is issued and the person to
whom communication is sent, has filed submissions against the
proposed liability. In Form GST DRC-01A or in Part - B of Form
GST DRC-01A, there is no provision under the Rules for
adjudication regarding submissions made by the person referred
to in sub-rule (1A) of Rule 142 of Rules of 2017.
12. We beg to differ from the judgments referred to by learned
counsel for the petitioner for the very reason that the Rules does
not provide for giving an opportunity of hearing and for deciding
the submissions made against proposed liability. Rule 142(1A) of
the Rules of 2017 is, basically, only a communication, which the
'proper officer', if he feels so, may give. The right of the assessee
arises only after issuance of a show cause notice under Rule
142(1)(a) of the Rules of 2017, in which case there is provision
under the Rules for affording an opportunity of hearing. Affording
opportunity of hearing at different stages was not contemplated
by the legislature and thus, we beg to differ from the judgments
cited at bar, by learned counsel for the petitioner. The RGST/CGST
Act and Rules having financial implications have to be interpreted
in the manner as promulgated. The Apex Court in the case of
Ajmera Housing Corporation & Ors. Vs. Commissioner of Income
[2024:RJ-JP:34388-DB] (6 of 6) [CW-13170/2024]
Tax:2010 INSC 535 observed that it is trite law that a taxing
statute is to be construed strictly. In a taxing Act one has to look
merely at what is said in the relevant provision. There is no
presumption as to a tax. Nothing is to be read in, nothing is to be
implied. There is no room for any intendment. In interpreting a
taxing statute, the Court must look squarely at the words of the
statute and interpret them. Considerations of hardship, injustice
and equity are entirely out of place in interpreting a taxing
statute.
13. Since in the present case, only communication has been
given, there is no reason to entertain the present writ petition and
the same appears to have been filed just to stall the proceedings,
which are pending before the authorities.
14. Consequently, we do not find any force in the writ petition,
hence, the same is dismissed.
15. The stay application and/or any other pending application, if
any, also stands disposed of.
(PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J
Preeti Asopa /11
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