Writ Of Certiorari Can Be Issued Even If Authorities Have Not Transgressed Their Jurisdiction In Any Way: Bombay HC
The Bombay High Court held that when there is an error of law and when it is apparent, a writ of certiorari can be issued even if the authorities have not transgressed their jurisdiction in any way.
The Court held thus in a writ petition filed by a company against the Commissioner, Central Tax, Pune-II.
A Division Bench comprising Justice G.S. Kukarni and Justice Jitendra Jain observed, “We find that there is an error of law apparent on the face of the record by both the forums below. Thus, when there is an error of law and when it is apparent, a writ of certiorari can be issued even if the authorities below has not transgressed their jurisdiction in any way. In such context Mr. Sridharan is also correct in placing reliance on the celebrated decision of the Supreme Court in Hari Vishnu Kamat (supra) where the Supreme Court has held that one of the grounds to issue a writ of certiorari is to correct an error of law which must be manifest on the face of the record.”
The Bench said that as per the settled principle of law, a writ of certiorari can be issued only when there is a failure of justice and that it cannot be issued merely because it may be legally permissible to do so.
Advocate Sriram Sridharan appeared for the petitioner while Advocate Karan Adik appeared for the respondents.
Factual Background -
A petition under Article 226 of the Constitution of India challenged an order passed by the ‘Maharashtra Appellate Authority for Advance Ruling for Goods and Services Tax’ constituted under Section 99 of the Maharashtra Goods and Services Act, 2017 (MGST). The appeal of the company filed under Section 100 of the Central Goods and Services Tax Act, 2017 (CGST) and MGST was rejected. The issue was whether the said company would be entitled to an exemption under a Notification, so as to be exempted from payment of service tax pertaining to loading, unloading, packing, storage or warehousing of “agricultural produce” namely “tea”.
The High Court after considering the submissions made by parties noted, “… the authorities below were correct in their approach in interpreting “Tea” as stored in the petitioner’s warehouse, is not an agricultural produce. We do not agree. Such contention as urged on behalf of the respondent is in teeth of the settled principles of law that a circular cannot whittle down or nullified the Exemption Notification. We may observe that Section 11 of the Central Goods and Services Act empowers the Government to grant exemption from tax on satisfaction, in the public interest and on the recommendations of the Council, by a notification, exempt generally, either absolutely or subject to such conditions as may be specified therein, from the whole or any part of the tax leviable thereon with effect from such date as may be specified in such notification.”
The Court said that the clarification contained in the Circular cannot amend the statutory notification and under the guise of clarification, the notification cannot be taken to be amended so as to delete ‘tea’ as an agricultural produce from the ambit of exemption.
“In so far as the impugned orders are concerned, on a perusal of the orders passed by the AAR the emphasis appears to be more on the issue that the process by which the tea leaves are dried which results in emergence of a manufactured product, and therefore, tea ceases to be an agricultural produce. In our opinion, such reasoning would in fact go contrary to the decisions of the Supreme Court as noted above for the reason that the essential characteristic of the tea being an ‘agricultural produce’ would not stand extinguish by mere processing and packing in whatever form”, further noted the Court.
The Court also said that both the authorities were required to consider the legal position and apply the same and any other extraneous consideration could not have been relevant.
“There must be an error apparent on the face of the record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not mean long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. Such errors may include the giving of reasons that are bad in law or inconsistent, unintelligible or inadequate”, observed the Court.
The Court added that, while issuing a writ of certiorari, the order under challenge should not undergo scrutiny of an appellate court; it is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the statutory authorities; and that there must be breach of the principles of natural justice for resorting to such a course.
Accordingly, the High Court allowed the petition.
Cause Title- Nutan Warehousing Company Pvt. Ltd. v. The Commissioner, Central Tax, Pune-II (Neutral Citation: 2023:BHC-AS:37052-DB)
