Order Date – 24 July 2023

Parties: M/s Jupiter Exports Vs Commissioner of GST

Facts – 

• The Petitioner, M/s Jupiter Exports, was alleged that they had fraudulent business transactions with some traders who were found to be non-existent. Thus the petitioner has been mulcted with a huge demand of tax along with the penalty, without affording the petitioner any opportunity of hearing. 
• The petitioner submits that the impugned order, is a non-speaking order and has failed to take into consideration the written reply to the Show Cause Notice filed on behalf of the petitioner.
• The respondent has contended that the petitioner has an alternate remedy to challenge the impugned order by filing an appeal and the writ petition ought not to be entertained in this case.

Issue – 

• Whether the order issued without offering opportunity of hearing is valid?

Order – 

• The Divisional Bench of Hon’ble High Court observed that the expression personal hearing or the opportunity of being heard is not a mere empty formality. The same also has to be a meaningful hearing. Moreover, when the law requires that the provisions of Section 75(4) and 75(5) of the CGST Act specifically require that an opportunity of hearing “shall” be granted where the request is received in writing, the same cannot be denied or be substituted by a telephonic conversation. It is also not a case of Revenue that the multiple adjournments were taken by the petitioner in order to delay the adjudication.
• Therefore, in the facts of the present case, there is a clear violation of the principles of natural justice. The order has been passed disregarding the specific provisions incorporated by the Legislature in consonance with the well-settled principles of audi alteram partem. 
• The mere availability of alternate remedy, however, does not oust the jurisdiction of the High Court and will not make the writ petition as not maintainable. The availability of alternate remedy does not operate as a bar on the power of the High Court to exercise jurisdiction under Article 226 of Constitution of India.
• The present case is a clear case of violation of the provisions of the Act as well as the violation of principles of natural justice and is a fit case for exercise of discretionary jurisdiction of the High Court under Article 226 of the Constitution of India
• The conduct of the respondent, as discussed above, is highly improper. Almost two years of the judicial time has been wasted only for the reason that respondent at first wanted to place the counter affidavit on record and then sought further time to file counter affidavit. These kind of practices cannot be countenanced. The same has the effect of not only causing harassment to the litigants but also wasting the precious judicial time of the Court. Thus the court imposed a cost of ₹5,000/- on the respondent.
• The matter was remanded back to enable the respondent to pass a fresh order after affording the petitioner a due opportunity to be heard.