Sainath Clearing And Shipping Company vs. Union Of INDIA And Ors
Original PDF →Facts
The Petitioner, Sainath Clearing and Shipping Company, filed a writ petition before the Bombay High Court challenging an order-in-original. The Petitioner argued that the impugned order was ex facie without jurisdiction and that the show cause notice was barred by limitation. The Petitioner also sought waiver of the 7.5% pre-deposit required for an appeal, claiming it was the real reason for directly approaching the High Court. The Court noted that the Petitioner had not made mandatory pleadings regarding an alternative remedy and that the arguments raised would require factual investigation. The Court also observed that the Petitioner had not explained why special treatment regarding the pre-deposit should be granted.
Held
The Court held that the writ petition was not maintainable as the impugned order was clearly appealable, and the Petitioner had failed to exhaust the alternative statutory remedy. The Court reasoned that the Petitioner's arguments regarding lack of jurisdiction and limitation would require factual investigation, which is best undertaken in the appellate process. The Court also found no justification for waiving the mandatory pre-deposit requirement, stating that the Petitioner had not provided any reasons for such special treatment and that the petition appeared to be filed solely to avoid the pre-deposit. The Court relied on its previous decision in Oberoi Constructions Limited vs The Union of India and other precedents regarding the exhaustion of alternate remedies. The Court declined to entertain the petition and dismissed it, explicitly stating that all contentions on the merits of the matter were left open for the appellate authority.
Key Issues
1. Whether the writ petition is maintainable before the High Court, given the existence of an alternative statutory remedy of appeal under the GST regime? (Question of law) 2. Whether the Petitioner has made out a case for waiving the mandatory pre-deposit requirement for filing an appeal? (Question of law) Petitioner's Arguments: The Petitioner contended that the impugned order was ex facie without jurisdiction and that the show cause notice was barred by limitation, thus justifying the direct approach to the High Court. They also argued that an appeal would require a pre-deposit of 7.5%, which was the 'real reason' for approaching the High Court, and requested a waiver of this amount. The Petitioner claimed that they had tried all other possible ways to resolve the issue without success. Respondent's Arguments: The Respondent (Union of India and Others) did not explicitly record arguments in the judgment, but the Court's observations imply that the existence of an appealable order and the Petitioner's failure to exhaust the alternative remedy were central to the Respondent's position.
Sections Cited
Section 73
AI-generated summary — verify with the full judgment below
10-WP-341-25FM.DOCX Sayali IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURI ICTION WRIT PETITION NO. 341 OF 2025 Sainath Clearing and Shipping Company …Petitioner Versus Union of India and Others …Respondent ______________________________________________________ Mr R. K. Tomar, with Mr. Gaurav S. Sarfare, for Petitioner. Mr S. Chandrashekhar and Mr. Abhishek Mishra, for Respondents. ______________________________________________________ CORAM: M.S. Sonak & Jitendra Jain, JJ. DATED: 15 July 2025 PC:-
Heard learned Counsel for the parties.
The order impugned in this Petition is clearly appealable. The Petitioner has cleverly avoided the mandatory pleadings regarding an alternative remedy. Instead, in paragraph 28, there is a vague statement that the Petitioners have “tried every other possible way to resolve the issue, but none of the efforts of the Petitioner were fruitful. Hence, approaching the Hon’ble High Court is the only remedy available”.
Upon the question as to why the necessary averments regarding alternate remedy are missing in this Petition, the AMOL PREMNATH JADHAV AMOL PREMNATH JADHAV Date: 2025.07.16 15:20:18 +0530
10-WP-341-25FM.DOCX learned Counsel argues that the impugned order is ex facie without juri iction, and even the show cause notice which was issued was barred by limitation.
Although we do not intend to dismiss these contentions at this stage, we observe that both would require investigations into factual matters. These issues were raised by the Petitioner and have been addressed in the order-in- original. If the Petitioner feels aggrieved by such consideration, they can always pursue the comprehensive remedy of appeal.
Learned Counsel for the Petitioner then submits that an appeal would require a pre-deposit of 7½%. This seems to be the real reason for directly approaching the High Court. The learned Counsel, without prejudice to his arguments, also urged that we should consider waiving this pre-deposit amount if the Petition is to be relegated to the remedy of an appeal. Why such special treatment in variance of the statutorily prescribed procedure must be followed in the case of this petitioner was never explained.
Apart from the fact that we do not exercise our extraordinary juri iction under Article 226 for undermining the statutory regime, which, inter alia, includes a pre-deposit, we note that in this case, there are no pleadings whatsoever as to why such a requirement should be waived in the petitioner's case. This Petition has been filed only to take a 10-WP-341-25FM.DOCX chance and, if possible, to avoid a pre-deposit. Such petitions Hon’ble Supreme Court and this Court in the context of exhaustion of alternate remedies. By relying upon the reasoning in Oberoi Constructions Limited (supra) and the precedents referred to therein, we are satisfied that no case is made out to entertain this Petition. Instead, the Petitioner is required to be relegated to the alternate remedy, which is quite efficacious if the Petitioner chooses to avail of the same.
For the above reasons, we decline to entertain this Petition and dismiss the same without any order as to costs.
This shall not preclude the Petitioner from availing of the alternate remedy, and in case such alternate remedy is invoked, we clarify that all contentions of all parties on the merits of the matter are left expressly open, because we have not examined the same.
At this stage, the learned Counsel for the Petitioner submits that the Petitioner will file an Appeal within eight weeks from the date of the uploading of this order. He requests that the time spent before this Court may be directed to be excluded. 1 (2025) 137 GSTR 601 10-WP-341-25FM.DOCX
The Petitioner may have instituted this Petition based on legal advice. The impugned orders were issued on June 14, 2024, and June 20, 2024. This means that this Petition was filed within the prescribed period of limitation.
Therefore, if the Petitioner indeed institutes an Appeal within eight weeks from the uploading of this order, then the Tribunal is to accord due consideration to the fact that this Petition was instituted on 20th September 2024 and has remained pending to date.
The petition is dismissed with liberty to avail the alternate remedy of appeal.
All concerned are to act on an authenticated copy of this order. (Jitendra Jain, J) (M.S. Sonak, J)
Reproduced from the public record of the Bombay High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.