M/S Jorabat Shillong Expressway Limited vs. Union Of INDIA And 5 Ors.

Held

The Court held that the writ petition is not maintainable as the petitioner has not made out any of the recognized exceptions to the rule of alternate remedy. Specifically, no violation of principles of natural justice was demonstrated, nor was a patent lack of jurisdiction established. The Court found that the challenges raised by the petitioner substantially pertain to adjudicatory findings and the interpretation of statutory provisions and exemption notifications. These issues are amenable to examination before the appellate authority under the CGST Act. Therefore, the Court declined to exercise jurisdiction under Article 226 of the Constitution of India. The writ petition was dismissed on the ground of the availability of an efficacious alternate statutory remedy. However, liberty was granted to the petitioner to avail the statutory remedy of appeal under Section 107 of the CGST Act within four weeks, with the appellate authority directed to consider the appeal on its merits without being influenced by any observations made in this judgment.

Facts

M/s Jorabat Shillong Expressway Limited (the petitioner) is challenging an Order in Original issued by the Additional Commissioner of Central Goods and Services Tax, Shillong, demanding GST of Rs. 112,39,64,394/- on annuity payments received from the National Highway Authority of India for the period July 2017 to December 2022. The petitioner argues that these annuity payments are exempt under specific notifications. The challenge also extends to a circular clarifying the exemption and the constitutional validity of notifications vesting certain authorities with powers under the CGST Act, arguing these render the demand notice and subsequent order without jurisdiction. The petitioner is a Special Purpose Vehicle incorporated to execute a highway project on a Build-Operate-Transfer (BOT) Annuity basis.

Key Issues

1. Whether the impugned Order in Original No. 01/Additional Commissioner/CGST Shillong/2024-25 dated 18.04.2024, issued under Section 74 of the CGST Act, is without jurisdiction and illegal? The petitioner contends that the annuity payments received are exempt from GST as per notifications dated 28.06.2017 and 29.06.2017, and that the impugned order misinterprets these exemptions. They also challenge the constitutional validity of Circular No. 150/06/2021-GST and the recommendation of the 43rd GST Council meeting, arguing these are beyond the scope of the GST Council's powers and do not bind the petitioner. Furthermore, the petitioner questions the authority of the Directorate General of Goods & Services Tax Intelligence (DGGI) and the Additional Commissioner to issue the show cause notice and the impugned order, citing alleged ultra vires notifications vesting powers. The revenue, represented by the respondents, argues that the writ petition is not maintainable due to the availability of an efficacious alternative statutory remedy under Section 107 of the CGST Act, and that the petitioner has not demonstrated any patent lack of jurisdiction or violation of principles of natural justice.