Page 76 - GSTL_21st May 2020_Vol 36_Part 3

322 GST LAW TIMES [ Vol. 36
ed the view taken by the Full Bench of the Gujarat High Court in Panoli Interme-
diate (India) Pvt. Ltd. v. Union of India & Ors. [AIR 2015 Guj 97 = 2015 (326) E.L.T.
532 (Guj.)] and also of the Karnataka High Court in Phoenix Plasts Company v.
Commissioner of Central Excise (Appeal-I), Bangalore [2013 (298) E.L.T. 481 (Kar.)].
The logic applied in these decisions proceeds on fallacious premise. For, these
decisions are premised on the logic that provision such as Section 31 of the 1995
Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227
of the Constitution. This approach is faulty. It is not a matter of taking away the
jurisdiction of the High Court. In a given case, the assessee may approach the
High Court before the statutory period of appeal expires to challenge the assess-
ment order by way of writ petition on the ground that the same is without juris-
diction or passed in excess of jurisdiction - by overstepping or crossing the limits
of jurisdiction including in flagrant disregard of law and rules of procedure or in
violation of principles of natural justice, where no procedure is specified. The
High Court may accede to such a challenge and can also non-suit the petitioner
on the ground that alternative efficacious remedy is available and that be in-
voked by the writ petitioner. However, if the writ petitioner choses to approach
the High Court after expiry of the maximum limitation period of 60 days pre-
scribed under Section 31 of the 2005 Act, the High Court cannot disregard the
statutory period for redressal of the grievance and entertain the writ petition of
such a party as a matter of course. Doing so would be in the teeth of the principle
underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas
Corporation Limited (supra). In other words, the fact that the High Court has wide
powers, does not mean that it would issue a writ which may be inconsistent with
the legislative intent regarding the dispensation explicitly prescribed under Sec-
tion 31 of the 2005 Act. That would render the legislative scheme and intention
behind the stated provision otiose.
16. The respondent had relied on the decision of this Court in K.S.
Rashid & Son v. The Income Tax Investigation Commission [AIR 1954 SC 207]. This
decision of the Constitution Bench, no doubt, deals with the extent of power of
the High Court under Article 226 of the Constitution and the situation when the
High Court can refuse to exercise its discretion, such as when alternative effica-
cious remedy is available to the aggrieved party. In paragraph 4 (last paragraph)
of this decision, however, the Court plainly noted that it was not necessary to
express any final opinion on the question as to whether Section 8(5) of the Taxa-
tion on Income (Investigation Commission) Act, 1947 (Act XXX of 1947) is to be
regarded as providing the only remedy available to the aggrieved party and that
it excludes altogether the remedy provided for under Article 226 of the Constitu-
tion.
17. Reliance was then placed on a three-Judge Bench decision of this
Court in ITC Ltd. & Anr. v. Union of India [(1998) 8 SCC 610 = 1998 (101) E.L.T. 9
(S.C.)]. In that case, the High Court had dismissed the writ petition on the
ground that the petitioner therein had an adequate alternative remedy by way of
an appeal under Section 35 of the Central Excise Act. Concededly, this Court was
pleased to uphold that opinion of the High Court. However, whilst considering
the difficulty expressed by the petitioner therein that the statutory remedy of
appeal had now become time barred during the pendency of the proceedings
before the High Court and before this Court, the Court permitted the petitioner
therein to resort to remedy of statutory appeal and directed the appellate author-
ity to decide the appeal on merits. This obviously was done on the basis of con-

GST LAW TIMES  21st May 2020  76