Heard on I.A. No.1800/2021, application for amendment in the writ petition.

The petitioner has filed this writ petition against the show cause notice issued by the respondents. During the pendency of the adjudication order dated 19.02.2021 has been passed by the Adjudicating Authority, hence in order to challenge the validity of the said final order, the petitioner has filed this application for amendment.

The respondents are opposing the said application that the petitioner is having statutory remedy to file an appeal against the final order hence, the application is liable to be dismissed.

Since the application is based on subsequent development taken place during the pendency of the petition and plea of availability of alternative remedy has already been taken in the return filed by the respondents, therefore, I.A. No.1800/2021 is allowed. The petitioner is directed to incorporate the amendment in the writ petition.

With the consent of parties, this writ petition is heard finally.

The facts of the case in short are as under:-

1/ The petitioner named S.R. Digital T.V. and Broadband Pvt. Ltd. is engaged in the business of cable network having its registered office at 335, 3rd-floor Orbit Mall Near Malhar Mega Mall AB Road Indore. The petitioner has entered into various subscription agreements with the broadcasters for transmission of pay channel signals to local cable operators through a Distribution network. The petitioner is also involved in the business of collection of subscription income, installation of set-up box etc. The company was controlled by Rohit Sethi despite having a number of directors. The petitioner and 15 others were served with a show-cause notice no.53-68/RUI/ADG/ST/2019 dated 12.11.2019 by the GST and Central Excise Indore calling upon them to appear on 25.03.2020 before the competent authority/ Adjudicating Authority either directly or through an authorized representative. Copy of the show cause notice dated 12.11.2019 is filed as Annexure-P/2 in the writ petition. The petitioner is referred to as noticee no.4 in the said notice.

2/ As per the contents of the show-cause notice the investigation carried out by the GST has revealed that Rohit Sethi was the key person and the sole beneficiary of the business of the petitioner company, that has been found involved in the evasion of service tax. The officer of Director General of GST conducted the search in the premises on 04.01.2018 and 25.01.2018 and recovered and seized incriminating materials document and computer data. The residential premises of Rohit Sethi was also searched. The search operation led to the recovery of a large amount of data in the digital form which they seized by way of panchanamas. Forensic images of the seized storage device were created. Along with the show cause notice document relied upon as mentioned in the Appendix-A were also supplied to all the notices including the petitioner and same is not in dispute in this matter. According to the petitioner, the repeated time request was made for the supply of the digital data collected from the office premises during the search in order to submit an effective reply to the show-cause notice to contest the proceedings before the authority. The copies of letters dated 09.06.2020, 13.07.2020, 20.07.2020 and 19.08.2020 are filed as annexures in this writ petition The representative of the petitioner appeared and made the repeated request during the proceeding before the adjudicating authorities for supply of data of computer, hard disk, zip drive, floppy etc. which were seized by the respondent no.4. During the pendency of the proceedings before the Adjudicating Authority, the petitioner has approached this court by way of the writ petition. The reliefs claimed are as under:-

(A) That the respondent no.2,3,4 and 5 be directed to provide copies of all data of digital form along with copies of data in hard disk as after obtaining the same the petitioner be in a position to file a reply to show cause notice.

(B) That, the adjudicating authority, Respondent no.2 be directed to dispose of the objections raised by the petitioner in various representations and follow the principle of natural justice.

(C) The respondent no.3 and 4 be directed to release all the non-relied upon documents to the petitioner and other related noticee.

(D) Such other relief/ reliefs this Hon’ble Court deems fit.

3/ After noticing the respondents have appeared and filed a preliminary reply about the maintainability of the writ petition.

4/ According to the respondents, all the digital data which is relied on by the department while issuing the show cause notice has already been provided to the petitioner. However, if the petitioner still required some specific documents the same would be provided to them after examining the request with regard to the requirement of the document. The respondents have placed reliance on Section 67(5) of the Central Goods and Services Tax Act which says “The person from whose custody any documents are seized under subsection (2) shall be entitled to make copies thereof or take extracts therefrom in the presence of an authorized officer at such place and time as such officer may indicate in this behalf. It is further submitted that the petitioner is having an efficacious remedy by way of appeal after the decision taken by the adjudicating authorities. Hence this petition is liable to be dismissed.

5/ During the pendency of this petition, the adjudicating authority has passed a final order on 19.02.2021 confirming the demand of service tax amounting to ₹ 15,01,98,745/- along with the penalty of the same amount against Rohit Sethi and others including the petitioner. The petitioner has filed an application for amendment challenging the aforesaid order in this petition.

6/ Learned counsel for the petitioner submits that the sole issue involves in this petition is whether the petitioner has been given an effective opportunity of hearing by non supplying the documents, data, demanded by the petitioner during the hearing before the adjudicating authority. The petitioner is having the fundamental right of having the effective opportunity of hearing before imposing tax liability with interest and penalty. Although the relied documents were supplied with the show cause notice but the documents on which the petitioner wanted to rely in order to submit an effective reply to the show cause notice and strong defense in the pending proceedings was not been provided. Since there is a violation of principles of natural justice, therefore, the petitioner cannot be relegated to the appellant authority by way of appeal in light of the law laid down by the Apex Court in the case of Radha Krishnan Industries Vs. State of Himachal Pradesh and others reported in the year (2021) 6 SCC 771 (para-24). In the aforesaid cases, the apex court has held that there are certain exceptions in the rule of alternate remedy including where the statutory authority has not acted in accordance with the provisions of law or acted in defiance of fundamental principles of judicial procedure or violation of principles of natural justice. Learned counsel has also placed reliance on the judgment passed by the apex court in Uma Nath Pandey Vs/ State of UP (2006) 6 SCC 40, Harbanslal Sahnia Vs. Indian Oil Corporation (2003) 2 SCC 107, Tribhuvandas Bhimji Zaveri and another Vs. Collector of Central Excise (1997) 11 SCC 276, the judgment passed by the High Court of Delhi in the case of Narendra Kumar Jain Vs. Dinesh Meena 2019 (367) E.L.T 991 (Del.), the judgment passed by the High Court of Gauhati in the case of Union of India Vs. North Eastern Steel Pvt. Ltd. 2017 (351) E.L.T. 90 (Gau), the judgment passed by the Bombay High Court in the case of Grasim Industries Ltd. Vs. Union Of India 2012 (276) E.L.T. 298 (Bom), the judgment passed by the apex court in the case of Mahek Glazes Pvt. Ltd. Vs. Union of India 2013 SSC Online Guj 1958 (2014) 300 ELT 25, in case of Pankaja and another V.s Yellappa (Dead) by Lrs. and Ors. (2004) 6 SCC 415, the judgment passed by the High Court of Delhi in the case of Omprakash and Anr. Vs. Delhi Development Authority in Writ Petition (Civil) No.7546/2007 dated 30.07.2009. Finally reliance on the judgment passed by the High Court of Judicature, Allahabad in the case of Novamet Industries Vs. Union of India reported in 2008 (227) E.L.T. 363(All.) in which in similar facts and circumstances, the petition was allowed by quashing the order passed adjudicating authorities in a petition heard under Article 226 of the Constitution of India.

7/ Shri Prasanna Prasad, learned Standing Counsel for the respondents submits that documents and data related to show cause notice have already been supplied to the petitioner and for other documents, the petitioner did not give a detail otherwise that would have been provided or permitted to inspect the same. The petitioner did not participate in the enquiry before the adjudicating authority. He has only sent letters to the office of Dy. Director for providing RUD i.e. complete data in soft form recovered from the laptop of Manish Sharma. The petitioner has been given various opportunities to appear before the authority but he has failed to appear hence the adjudicating authority has passed a final order, against which the petitioner is having alternative remedy. Except for the petitioner all other noticee did appear, they recorded their statement and produced the necessary documents, therefore, only for the petitioner out of 15 noticees. The final order passed by the adjudicating authority cannot be quashed. Hence the petition is liable to be dismissed. Shri Prasad has placed reliance on the judgment passed by the apex court in the case of Hindustan Coca Cola Beveraged Pvt. Ltd. Vs. Union of India and others (2014) 15 SCC 44, Hameed Kanju Vs. Najim (2017) 8 SCC 611, Ansal Housing and Const. Ltd. Vs. State of UP (2016) 13 SCC 305, Institute of Hotel Management and another V/s Union of India and another (2017) 11 SCC 72, Assistant Commissioner of State Tax and Others Vs. Commercial Steel Limited (2021) SCC Online SC 884, the judgment passed by the DB of this Court in the case of Shashi Ranjan Kumar Vs. Directorate of Revenue Intelligence in WP NO.266/2017, also in case of Sanjeet Kumar Sharma Vs/ Directorate of Revenue Intelligence in WP NO.267/2017, in case of Prestige Polymers Vs. Union of India in WP No.10397/2018, in case of M/S Zeit Electro Mech Pvt. Ltd. Versus Customs Central Excise And Central Tax in WP No.7205/2018, in case of Abhinav Infrabuild Pvt. Ltd Vs. Shri Ambrish Nadkar in WP No.19793/2020 order dated 10.03.2022 in which it has been held that when there is a special remedy of appeal is provided then the high court should not entertain the writ petition. We have heard the learned counsel for the parties and perused the record.

8/ The only ground on which the petitioner has filed this writ petition is that despite repeated demands the data collected from the laptop of Manish Verma were provided to him. However, it is not in dispute that the data and documents relied on in the show cause notice were provided to the petitioner. When any the noticee prays for fair trial then there should be effective participation in the entire trial by him also. The petitioner instead of appearing through a legal representative before the adjudicating authority was kept on corresponding for supply for entire data collected by the respondents during the search. No such demand was made by the person from whose possession the data was seized. The show-cause notice was issued on 12.11.2019 and the final order has been passed on 19.02.2021. There are as many as 15 noticee along with the petitioner and most of them participated in the enquiry at the instance of the petitioner alone the entire order cannot be quashed. Even otherwise appellate authority is competent to examine the effect non-supply of non relied upon documents/ data while deciding the appeal. Even otherwise there are details of the data demanded by the writ petitioner only for the sake of delaying the proceedings simply letters were sent. The grounds raised in this petition are available before the appellate authority to be raised in the appeal especially when other notice might have preferred an appeal against the impugned order.

In view of the above, the petition is dismissed with the liberty to approach the appellate authority. We have not expressed any opinion on the merit of the case. No order as to cost.