Page 96 - GSTL_6th August 2020_Vol 39_Part 1

22 GST LAW TIMES [ Vol. 39
Article 226 should not be permitted to be invoked in order to challenge
show-cause notices unless accepting the fact in the show cause notices to be
correct, either no offence is disclosed or the show cause notices are ex facie
without jurisdiction. That could not be said as far as the eight show cause
notices in question are concerned. The High Court, therefore, should not
have interfered and should have left the respondents to pursue their reme-
dy by way of an appeal under Section 9 of the Act from the order of as-
sessment which, according to the High Court, had admittedly been passed
before the writ petition had been filed by the respondent.”
22. The ratio which could be culled out from the aforesaid judgment is
that the power of judicial review, under Article 226 of the Constitution of India,
can be exercised where challenge to a show cause notice is made provided it is
patently demonstrated that the same is issued without jurisdiction or it does not
disclose any offence to have been committed. Ordinarily High Court should not
embark to decide the factual disputes but relegate the party to submit the reply
before the authority concerned who is obliged to decide the same. The aforesaid
rule is, however, not free from exception. The exception, carved out in the case of
Indian Cardboard Industries Limited v. Collector of Central Excise, reported in 1992
(58) E.L.T. 508 (Cal.), in our opinion, still holds the field. The aforesaid exception
can be aptly quoted hereunder :
“15. On the basis of the decisions cited it appears that the court in exercise
of its jurisdiction under Art. 226 of the Constitution will interfere with a
show cause notice in the following circumstances :
(1) When the show cause notice ex facie or on the basis of admit-
ted facts does not disclose the offence alleged to be committed;
(2) When the show cause notice is otherwise without jurisdiction;
(3) When the show cause notice suffers from an incurable infirmi-
ty;
(4) When the show cause notice is contrary to judicial decisions or
decisions of the Tribunal;
(5) When there is no material justifying the issuance of the show
cause notice.”
Therefore, to sum up, the High Court can interfere under Article 226 of the Con-
stitution of India against a show cause notice where the same is issued by an au-
thority in exercise of the power which is absent; the facts does not lead to com-
mission of any offence; the show cause notice is otherwise without jurisdiction; it
suffers from incurable infirmity; against the settled judicial decisions or the deci-
sions of the Tribunal and bereft of material particulars justifying commission of
offence.
23. The Supreme Court, in the case of Union of India v. Vicco Laborato-
ries, reported in 2007 (13) SCC 270 = 2007 (218) E.L.T. 647 (S.C.), also deprecates
interference at the stage of issuance of show cause notice by the authorities un-
less it is without jurisdiction or in abuse of process of law in these words :
“31. Normally, the writ court should not interfere at the stage of issuance
of show cause notice by the authorities. In such a case, the parties get ample
opportunity to put forth their contentions before the authorities concerned
and to satisfy the authorities concerned about the absence of case for pro-

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