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
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
(2005) 8 SCC 264
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
(2024) 4 S.C.R. 541
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
