1. This writ petition by M/s. JSW Steel Ltd. was filed on 27th October, 2021 challenging the show cause notices (SCNs) dated 29th September, 2021 issued by the Deputy Commissioner of State Tax Enforcement Unit, Barbil, Odisha (Opposite Party No.4) alleging wrongful utilization of Input Tax Credit (ITC) in contravention of Sections 16, 20, 122, 132 of OGST/CGST Act read with Rule 54 (1A)(a) of the OGST/CGST Rules “intentionally by reason of fraud and willful mistake.”

2. The writ petition was mentioned before this Court for listing and the date for listing was given as 29th November, 2021. An advance copy of the writ petition had been served even at the stage of mentioning on the Additional Standing Counsel (ASC) for the Department, Mr. Sunil Mishra.

3. When this petition was called out for hearing today, as soon as Mr. P. Chidambaram, learned Senior Counsel for the Petitioner, commenced his submissions, Mr. Sunil Mishra, learned ASC for the Department interrupted to state that the writ petition has been rendered infructuous on account of the fact that on 26th November, 2021 two separate orders were passed by the Adjudicating Authority, i.e. Opposite Party No.4- one for the period April, 2020 to March, 2021 and the other for the period April, 2021 to August, 2021. He produced copies of the orders. Mr. Chidambaram, learned Senior Counsel informed the Court that only last night, i.e. the night of 28th November, 2021, the copies thereof were e-mailed to the Petitioner by the Department.

4. Mr. Chidambaram submitted that knowing fully well that the SCNs were under challenge before this Court and inter alia on the ground of lack of jurisdiction, the impugned orders disposing of the SCNs had been passed in a hurry only to pre-empt today’s hearing and to present the Court with a fait accompli.

5. When this Court perused the impugned orders handed over by Mr. Mishra, it was noticed that the said orders in fact deal with the averments in this very writ petition, which has not even been listed before this Court once. In other words, the Opposite Party No.4, i.e. the Deputy Commissioner of State Tax has already dealt with the averments in the writ petition, which are yet to be examined by the High Court, and purportedly negatived them as well as drawing inferences of ‘admissions’ by the Petitioner.

6. The Court finds this is to be extraordinary. It unmistakably reflects the anxiety of the Officer in question who has issued the SCNs to proceed to dispose them of hurriedly and thus preempt the hearing before this Court.

7. At this stage, it is this that persuades the Court to require the exercise of determining the SCNs to be revisited afresh. Mr. Chidambaram requested the Court not to relegate the Petitioner to the same Officer who issued the impugned SCNs, since, according to him, the result would be a ‘predetermined’ one, and an exercise in futility.

8. This Court would not like to presume that statutory authorities would be unmindful of their statutory responsibilities of determining every SCN in an objective and impartial manner on the basis of the facts presented before them, addressing all the legal submissions made in response to the SCN. This is what lends legitimacy to the system devised by the statutes under which quasi judicial adjudicatory powers are entrusted to authorities. Otherwise, if the adjudication of every SCN is only to confirm the demand raised, irrespective of the merits, the entire exercise would become an empty formality and that would be contrary to the legislative intent.

9. In view of the above developments and discussions, the Court sets aside the two adjudication orders dated 26th November, 2021 passed by Opposite Party No.4, i.e. for the periods April, 2020 to March, 2021 and April, 2021 to August, 2021 and issues the following directions:

i. The Petitioner will file its reply to the two final SCNs issued for the aforementioned periods on or before 1st January, 2022;

ii. The Opposite Party No.4 will give a hearing to the Petitioner on a date to be intimated to the Petitioner (which will be any time prior to 1st February, 2022) at least 7days in advance;

iii. After hearing the Petitioner, fresh adjudication orders will be passed by Opposite Party No.4, uninfluenced by the orders which have been set aside by this Court today, in accordance with law on or before 4th April, 2022;

iv. If such orders are adverse to the Petitioner, they will not be given effect to for a period of two weeks after they are communicated to the Petitioner to enable to the Petitioner to seek such appropriate remedies that may be available to the Petitioner in accordance with law.

v. The Court clarifies that it should not be understood as having expressed any opinion on the merits of the two SCNs. The observations in this order are made only in the context of the approach adopted by the adjudicating authority in deciding the two SCNs.

10. The writ petition is disposed of in the above terms.

11. An urgent certified copy of this order be issued as per rules.