Auroglobal Comtrade Pvt. Ltd. Represented by Director Sri Raj Kumar Dhupar V. Joint Commissioner Goods and Service Tax and Central Excise Bhubaneswar Commissionerate and Assistant Commissioner Goods and Service Tax and Central Excise Bhubaneswar-I Division and Commissioner Goods and Service Tax and Central Excise Bhubaneswar Commissionerate and Additional Commissioner, GST & CE (Appeal) Bhubaneswar Commissionerate and Chief Commissioner Goods and Services Tax, Central Excise & Customs, Bhubaneswar Zone

WP(C)/35050/2025

AI Insights

The case involves Auroglobal Comtrade Pvt. Ltd., which filed a writ petition against the Goods and Service Tax (GST) authorities challenging the issuance of a Demand-cum-Show Cause Notice and a Summary Show Cause Notice. These notices were issued following a review order by the Commissioner of GST, which directed the filing of an appeal against a refund sanction order that had been previously upheld by the Appellate Authority. The petitioner argued that the notices were not maintainable as the issues had already been decided in their favor by the Appellate Authority. The court agreed with the petitioner, emphasizing the principles of res judicata and issue estoppel, and set aside the notices.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 825828 (HC-ODISHA)
• Appeal Type: Others
• Pronouncement Date: 18-12-2025
• Assessment Year: misc
• Other Referred Cases: Odisha Administrative Tribunal Bar Association Vrs. Union of India, Province of Bombay Vrs. Khushaldas S. Advani, Indian National Congress (I) Vrs. Institute of Social Welfare, Board of High School and Intermediate Education Vrs. Ghanshyam Das Gupta, Gulabchand Chhotalal Parikh Vrs. State of Bombay, Nirmal Chandra Panigrahi Vrs. State of Odisha, State of Odisha Vrs. Pratima Mohanty, Tirupati Balaji Developers Private Ltd. Vrs. State of Bihar
• Laws Referred To: Central Goods and Services Tax Act, 2017, Odisha Goods and Services Tax Act, 2017
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SUJAN KUMAR ROY CHOUDHURY
• Assessee Lawyers: PRANAYA KISHORE HARICHANDAN; MANASH RANJAN MISHRA; PRAGYANSHREE HARICHANDAN; PRAGYANT HARICHANDAN
• Keywords: Administrative function; Demand cum show cause notice; Erroneous refund; Quasi-Judicial Function; Refund of input tax credit; Export of Goods and Services without Payment of Integrated Tax
• Section: 73; 50; 226; 122; 227

Judgement Text

" W.P.(C) No.35050 of 2025 Page 1 of 50 ORISSA HIGH COURT : CUTTACK W.P.(C) No.35050 of 2025 In the matter of Applications under Articles 226 & 227 of the Constitution of India, 1950 *** Auroglobal Comtrade Pvt. Ltd. Represented by Director Sri Raj Kumar Dhupar Aged about 57 years Son of Late Ajodhyanath Dhupar 303/304, Satyanagar, Bhubaneswar Khordha, Odisha – 751 007 … Petitioner -VERSUS- 1. Joint Commissioner Goods and Service Tax and Central Excise Bhubaneswar Commissionerate Central Revenue Building, Rajaswa Vihar Bhubaneswar – 751 007. 2. Assistant Commissioner Goods and Service Tax and Central Excise Bhubaneswar-I Division Plot No.258, District Centre Chandrasekharpur Bhubaneswar – 751 016. 3. Commissioner Goods and Service Tax and Central Excise Bhubaneswar Commissionerate Central Revenue Building, Rajaswa Vihar Bhubaneswar – 751 007. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 2 of 50 4. Additional Commissioner, GST & CE (Appeal) Bhubaneswar Commissionerate Central Revenue Building, Rajaswa Vihar Bhubaneswar – 751 007. 5. Chief Commissioner Goods and Services Tax, Central Excise & Customs, Bhubaneswar Zone, Central Revenue Building, Rajaswa Vihar Bhubaneswar – 751 003 … Opposite Parties. Counsel appeared for the parties: For the Petitioner : M/s. Pranaya Kishore Harichandan, Ch. Manash Ranjan Mishra, Mrs. Pragyanshree Harichandan, Pragyant Harichandan, Advocates For the Opposite Parties : Mr. Sujan Kumar Roy Choudhury Senior Standing Counsel Goods and Service Tax, Central Excise & Customs P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 18.12.2025 :: Date of Judgment : 18.12.2025 JUDGMENT MURAHARI SRI RAMAN, J.— Craving to invoke extraordinary jurisdiction under the provisions of Articles 226 and 227 of the Constitution of Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 3 of 50 India against issue of Demand-cum-Show Cause Notice dated 25.09.2025 in Form GST DRC-01 (“DSCN”, hereinafter referred to) for adjudication under Section 73 and levy of interest under Section 50 coupled with imposition of penalty under Section 122 of the Central Goods and Services Tax Act, 2017/the Odisha Goods and Services Tax Act, 2017 (for brevity, “GST Act”), and Summary of Show Cause Notice in Form GST DRC-01 dated 28.10.2025, the writ petition is filed with the prayer(s) for grant of following relief(s): ―In the circumstances stated above, it is humbly prayed that this Hon‘ble Court may be graciously pleased to: (a) Issue a Rule NISI in the nature of Writ of Mandamus and/or any other appropriate Writ/Writs calling upon the opposite parties along with records to show cause; (b) Issue Writ of Mandamus and/or any other appropriate Writ(s), by quashing the entire proceedings initiated under Section 73 of the Act, by issuing of impugned Show Cause Notices by the opposite party No.1 in Annexure Nos.1 & 1A Series; (c) Why the action of the opposite parties shall not be declared as illegal, unjust and flagrant violation of statute; (d) If the opposite parties fails to show cause or shows false or insufficient causes make the said Rule NISI absolute; Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 4 of 50 (e) Pass such other Order/Orders and/or direction/directions as this Hon'ble Court may deem fit and proper; (f) And/or allow this Writ Petition with cost And, for this act of kindness, the Petitioner shall as in duty bound, ever pray.‖ Facts: 2. Facts as unfurled by the petitioner in the writ petition reveal that the petitioner, a private limited company incorporated under the Companies Act, 1956, being assigned GSTIN 21AAJCA0870E1Z7 within the jurisdiction of the Central Goods and Services Tax, Bhubaneswar-I Division, made application in Form GST RFD-01 (prescribed under Rule 89 of the Central/ Odisha Goods and Services Tax Rules, 2017), dated 04.07.2024 claiming refund of Rs.14,80,02,002/- citing reason therein, “Refund of Input Tax Credit on Export of Goods and Services without Payment of Integrated Tax”. 2.1. A Show Cause Notice in Form GST RFD-08 dated 30.07.2024 as prescribed under Rule 92 of the Central Goods and Services Tax Rules, 2017/the Odisha Goods and Services Tax Rules, 2017 (Collectively, “GST Rules”) was issued proposing rejection of application for refund with the following reason: Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 5 of 50 ―Your applied, refund period is April, 2022 to March, 2023: You have applied for a refund of Rs.14,80,02,002/- on 2,79,910 MTS for export of Iron Ore Fines amounting to Rs.1,46,02,54,701/- for the tax period April, 2022 to March, 2023, under refund of export of goods without payment of tax. However, while analyzing the documents, it is found that out of 2,79,910 MTS iron ore fines, you have made a short shipment of 3,840 MTS iron ore fines valued to Rs.2,61,21,42Z22/-. Hence, you are only eligible for proportionate refund, but you have applied for full refund, which is liable for necessary action under Section 74 of the CGST Act, 2017.‖ 2.2. The petitioner responding to such notice vide Form GST RFD-09, dated 06.08.2024, admitted to have claimed inadmissible claim of refund to the tune of Rs.25,56,052/- and requested for processing rest of the amount eligible for refund. 2.3. Upon verification of relevant documents produced with reference to the claim made in the refund application and considering the reply, the Assistant Commissioner, Central Goods and Services Tax and Central Excise, Bhubaneswar-I Division issued the Refund Sanction- Cum-Speaking Order in Form-GST-RFD-06, dated 23.08.2024, granting refund of Rs. 14,54,45,950/- comprising CGST: Rs.7,27,22,975/-, OGST: Rs.7,27,22,975 and IGST: NIL pertaining to the period Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 6 of 50 01.04.2022 to 31.03.2024 and also issued the Payment Order in Form GST RFD-05, dated 23.08.2024. 2.4. The Commissioner, Goods and Services Tax and Central Excise in view of provision contained in sub-section (2) of Section 107 of the GST Act examining the Refund Sanction-Cum-Speaking Order in Form-GST-RFD-06, dated 23.08.2024 passed by the Assistant Commissioner, Goods and Services Tax and Central Excise, Bhubaneswar-I Division vide Review Order dated 20.02.2025 observing that the refund claim of Rs.14,54,45,950/- was erroneously granted in terms of proviso to Section 54 of the GST Act read with Rule 89 of the GST Rules, instructed as follows: ―I, therefore, hereby authorize and direct the Assistant Commissioner GST & CX, Bhubaneswar-I Division, Bhubaneswar to file an appeal against the said order before the Additional Commissioner (Appeals), Goods and Services Tax and Central Excise, Bhubaneswar for: (a) Determining the correctness of the refund sanction order in Form RFD-06, dated 20.08.2024, for sanctioning the refund claim erroneously as the refund claim has not been qualified for sanction under the category of ―Exports of Goods/Services— Without Payment of Tax (Accumulated Input Tax Credit) under Section 54 of the CGST Act, 2017 read with Rule 89 of CGST Rules, 2017; Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 7 of 50 (b) Passing an Order in terms of Section 107(11) of the Central Goods and Services Tax Act, 2017 and setting aside the said order; and (c) Passing any other order as may be deemed appropriate.‖ 2.5. An appeal under Section 107(2) of the GST Act was filed in Form GST APL-03 prescribed under Rule 109 of the GST Rules by the Assistant Commissioner, Goods and Services Tax and Central Excise, Bhubaneswar-I Division, Chandrasekharpur, Bhubaneswar, which stood disposed of on 07.08.2025 by an Order-in-Appeal No. 261/GST/BBSR/ADC/25-26, inter alia with the following observations: i. The refund Sanctioning Authority has sanctioned refund of Rs.14,54,45,950/- which is less than the maximum admissible refund of Rs.27,29,07,168/-, as calculated in Table-V, and the Input Tax Credit of Rs.22,62,47,927/- related to exports made without payment of tax. The GST Organisation, as the appellant, neither contended that the taxpayer had applied for a refund in relation to any zero- rated exports other than the claim nor was it in dispute with respect to the eligibility of the Input Tax Credit or was any portion of the Input Tax Credit blocked under the GST Act. Although the sanctioning authority did not explicitly mention the Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 8 of 50 turnover related to zero-rated supplies, the adjusted total turnover and the net Input Tax Credit in the speaking order, there was no excess refund sanctioned to the taxpayer. ii. With respect to contention of the appellant that the refund application was barred by limitation, in view of clause (a) of Second Explanation to Section 54 of the GST Act, the relevant date pertaining to export by sea or air being the date reflected in the shipping bill, i.e., 23.12.2022, and last date for claiming refund was 22.12.2024, whereas the refund application was submitted on 04.07.2024, the application was within statutory period prescribed. iii. With respect to clubbing of different months across successive financial years, stemming on Section 16(3) of the Integrated Goods and Services Tax Act, 2017 and Section 54(3) of the GST Act, it was observed that there is no prohibition to claim refund involving different tax periods. 2.6. After disposal of appeal filed at the behest of the GST Organisation, contemplating action under Section 73 of the GST Act, DSCN (Annexure-1) and Summary of Show Cause Notice (Annexure-1A) was served on the petitioner, being issued by the Joint Commissioner of Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 9 of 50 GST and Central Excise, Bhubaneswar, wherein it has been stated thus: ―In view of the above M/s. Auroglobal Comtrade Pvt. Ltd. Plot No.303/304, Satyanagar, Bhubaneswar, Khordha, Odisha – 751 007, (GSTIN: 21AAJCA0870E1Z7) are hereby required to reply to the show cause to the Joint/Additional Commissioner of GST and Central Tax, C.R. Building, Rajaswa Vihar, Bhubaneswar–751 007 within 30 days of receipt of this notice as to why: i. an amount of Rs.14,54,45,950/- (Rupees Fourteen Crores Fifty four Lakhs Forty Five Thousand Nine hundred and Fifty only) (CGST: Rs.7,27,22,975/-, SGST: Rs.7,27,22,975/- & IGST: Rs.NIL), being the refund amount erroneously sanctioned and paid for the tax period from 01.04.2022 to 31.03.2024, should not be recovered in cash from them under the provisions of sub-section (1) of Section 73 of the CGST/OGST Act, 2017; ii. Interest on Sl. No.(i) above should not be demanded from them under Section 50 of the CGST/OGST Act, 2017; iii. Penalty on Sl. No.(i) above should not be demanded from them under Section 73 read with Section 122(2)(a) of the CGST/OGST Act, 2017. *** This notice is issued without prejudice to any other action that may be initiated under the provisions of the CGST Act, 2017 arid Rules made thereunder or any other law for the time being In force in the Republic of India. Relied upon documents: Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 10 of 50 I. RFD-01 for the period of 01.04.2022 to 31.03.2024. II. RFD-08 for the period of 01.04.2022 to 31.03.2024.‖ 2.7. In reply the petitioner on 23.10.2025 apprised that: i. The Show Cause Notice, dated 25.09.2025 is not maintainable as the Commissioner of Central Goods and Services Tax and Central Excise of Bhubaneswar Commissionerate having scrutinized the Refund Sanction-cum-Speaking Order, dated 23.08.2024 in Form GST RFD-06 under Section 107(2) of the GST Act, 2017, an appeal was filed by the Assistant Commissioner upon being authorized by the Commissioner and the Additional Commissioner (Appeal) disposed of the appeal filed under Section 107(1) of the GST Act. ii. The Appellate Authority after hearing the matter, passed the Order-in-Appeal dated 07.08.2025 rejecting the Appeal and confirming the Refund Sanction Order. As per Section 107(14) of the GST Act, the Appellate Authority communicated the order to the Appellant, the Respondent and the Adjudicating Authority. This apart, as per Section 107(15), a copy of the Appellate Order was sent to the jurisdictional authority designated. iii. As per Section 107(16) of the CGST Act, 2017, the order passed by the Appellate Authority is final and Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 11 of 50 binding on all the parties, subject to Sections 108, 113, 117, or 118. iv. On the self-same grounds which were subject matter of adjudication in the appeal, further proceeding under Section 73 of the GST Act based on the Review Order of the Commissioner is not maintainable. 2.8. Despite such information being supplied and objection raised before the Joint Commissioner, Goods and Services Tax and Central Excise, Bhubaneswar Commissionerate, said authority proceeded to issue further Summary of Show Cause Notice in Form GST DRC-01, dated 28.10.2025 without delving into the merit of the explanation/reply so rendered in response to DSCN. 2.9. Hence, this writ petition beseeching afore-mentioned relief(s) has been filed. Hearing: 3. On 11.12.2025 when the matter was listed for “Fresh Admission”, Sri Sujan Kumar Roy Choudhury, Senior Standing Counsel (GST, Central Excise and Customs) appeared and prayed for an accommodation to enable him to seek instructions. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 12 of 50 3.1. A written instruction as received by learned Senior Standing Counsel was placed before this Court, relevant portion of which reads as follows: ―The Show Cause Notice dated 25.09.2025 was issued by the Joint Commissioner, GST & Central Excise, Bhubaneswar, for recovery of the erroneous refund pursuant to the review of the refund sanction order by the Commissioner, GST & Central Excise, Bhubaneswar, and the consequent issuance of the review order dated 20.02.2025. The said Show Cause Notice is not issued in consequence to the Order-in-Appeal dated 7.8.2025, rather is independent of, and has no nexus with, the outcome of the departmental appeal filed by the Assistant Commissioner, CGST & Central Excise, Bhubaneswar-1 Division. The petitioner‟s confusion has arisen merely because the Show Cause Notice was issued subsequent to the passing of the order in appeal by the Appellate Authority, though the two proceedings operate in distinct statutory fields. Further, issuance of Form GST DRC-01 on dated 28.10.2025 after the issuance of SCN on 25.9.2025 is also consequential and procedural in nature, intended to place the quantified demand financial year wise on record in the prescribed statutory form, and does not amount to issuance of a fresh or separate Show Cause Notices. Hence, only one SCN was issued to the Petitioner on dated 25.09.2025, the DRC-01 of the said SCN were uploaded on 28.10.2025 financial year wise for 2022-23 and 2023-24 separately. The Order-in-Appeal No. 261/GST/BBSR/ADC/25-26 dated 07.08.2025, whereby the departmental appeal was rejected and the refund sanction order passed by the Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 13 of 50 Assistant Commissioner, CGST & Central Excise, Bhubaneswar-I Division was upheld, is presently under verification/scrutiny by the competent authority for examining its acceptability or filing further appeal before GSTAT.‖ 3.2. On misconstruction and misconception since the GST Organisation seeks to proceed with multiple adjudicatory proceedings on the same subject-matter, i.e., refund granted to the petitioner as enumerated above and short point is raised with respect to maintainability of proceeding under Section 73 of the GST Act on the self- same issues which had already been discussed and decided by the Additional Commissioner, GST (Appeal), sitting as Appellate Authority, while disposing of appeal filed at the behest of the GST Organisation questioning the veracity of Refund Sanction-cum-Speaking Order dated 23.08.2025, this Court on the consent of counsel appearing for respective parties heard the matter finally. 3.3. Heard Sri Pranaya Kishore Harichandan, learned Advocate appearing for the petitioner and Sri Sujan Kumar Roy Choudhury, learned Senior Standing Counsel appearing for the CGST, Central Excise and Customs. Analysis, discussion and decision: 4. The issue at hand arises from consideration of refund application filed by the petitioner which was allowed Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 14 of 50 excluding ineligible claim upon examination of material on record. Refusing to accede to entire amount of claim, the Authority concerned has passed Refund Sanction- cum-Speaking Order and issued refund payment order to the extent indicated therein. 4.1. Upon review of said order under Section 107(2), a direction was issued for filing appeal, which, in fact, being filed came to be dismissed on consideration of merits by the Appellate Authority on 07.08.2025, thereby the Refund Sanction-cum-Speaking Order got affirmed. 4.2. Upon hearing both the sides, after such quasi judicial order being passed in appeal filed at the behest of the GST Organisation, in the garb of giving effect to Review Order of the Commissioner of CGST, the DSCN has been issued under Section 73 of the GST Act by the Joint Commissioner, Bhubaneswar Commissionerate. 4.3. It is submitted by Sri Pranaya Kishore Harichandan, learned Advocate that even though exhaustive reply with germane information was supplied to the Authority, a Summary Show Cause Notice has been issued apparently without considering the explanation of the petitioner. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 15 of 50 4.4. Section 107(2)1 of the GST Act empowered the Commissioner to direct subordinate authority to file appeal against order or decision on consideration of its legality or propriety. Said sub-section (2) of Section 107 explicitly mandates the Commissioner to examine the record of any proceedings. This Court has the opportunity to peruse the Review Order of the Commissioner which does not spell out the reason as to why he came to opine that the refund of Rs.14,54,45,950/- was erroneously granted. Directing the subordinate to prefer appeal in terms of provisions contained in Section 107 is an administration consideration. Nonetheless, taking into consideration the evidence available and upon hearing the appellant-GST Organisation and the respondent-present petitioner, the Appellate Authority has addressed each of the grounds in appeal on its merit. 4.5. As it emanates from the written instruction passed on to the Senior Standing Counsel that the Review Order, i.e., 1 Section 107 of the GST Act dealing with “Appeals to Appellate Authority” in sub- section (2) thereof reads thus: ―(2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 16 of 50 administrative decision of the Commissioner, is given precedence over the quasi judicial Appellate Order or decision of the Appellate Authority and a proceeding under Section 73 of the GST Act is sought to be initiated by issue of DSCN and Summary SCN. A contradictory stance is also reflected in said written instruction that the GST Organisation is still under process of exploring possibility of filing an appeal before the Goods and Services Tax Appellate Tribunal. This clearly shows that the GST Organisation is not sure about its merit of the matter, but by causing embarrassment to the petitioner, it seeks to initiate multiple proceedings in order to obviate the effect of the Appellate Order. 4.6. The distinction between administrative function and quasi judicial function as culled out in Odisha Administrative Tribunal Bar Association Vrs. Union of India, (2023) 6 SCR 731, is as follows: ―46. This Court discussed the meaning and contours of a quasi judicial act in Province of Bombay Vrs. Khushaldas S. Advani, (1950) SCC 551, where S.R. Das, J. in his concurring opinion held: ‗80.1 (i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 17 of 50 the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and 80.2. (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. 81. In other words, while the presence of two parties besides the deciding authority will prima facie, and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.‘ 47. In Indian National Congress (I) Vrs. Institute of Social Welfare, (2002) 5 SCC 685 = (2002) 3 SCR 1040, this Court held that: ‗29. *** another test which distinguishes administrative function from quasi judicial function is, the authority who acts quasi Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 18 of 50 judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency.‘ 48. In Board of High School and Intermediate Education Vrs. Ghanshyam Das Gupta, AIR 1962 SC 1110 this Court expounded upon when an authority is required to act judicially: ‗8. *** Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the right affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute.‘ 49. From the above decisions, it emerges that: a. The decision of an authority is prima facie, and in the absence of any other factor, a quasi judicial act when there is a lis before it, with two parties with competing claims; Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 19 of 50 b. When the authority has the power to do something which will prejudicially affect the subject, the decision it takes is a quasi-judicial act even in the absence of a lis and two parties with competing claims, when the authority is required by the statute in question to act judicially. The express provisions of the statute, the nature of the right affected, the manner of disposal, the objective criterion (if any) to be adopted while deciding one way or the other, the effect of the decision, and other signs in the statute may be considered when evaluating whether there is a duty to act judicially; and c. The decision of an authority is quasi-judicial when it is made in accordance with rules. The decision is administrative when it is dictated by policy and expediency. 50. Having laid down the above principles, it must be realised that the distinction between quasi judicial and administrative acts is not always well defined and its application is not always certain. Doctrine and practice are not necessarily happy partners. The instant case evidently does not involve a lis or two parties with competing claims appearing before an authority who will determine their respective rights. Further, the act of the Union Government establishing the OAT did not prejudicially affect the subject in any manner. Litigants or other citizens were not left without a forum. They could continue to pursue their remedies before the OAT when it was first established, instead of before the Orissa High Court.‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 20 of 50 4.7. It is well-settled that the High Court can, under Article 226 of the Constitution of India, interfere, if the action of an administrative authority or Tribunal is unfair or unreasonable or it defies the reasons. Where an administrative or quasi judicial authority acts in violation of the rules of natural justice, the High Court can set aside the said action. It may be worthwhile to refer to Mahadayal Premchandra Vrs. CTO, (1958) 9 STC 428 (SC) wherein it has been stated that the Commercial Tax Officer having passed the order merely voicing the opinion of the Assistant Commissioner without any conviction of his own, it can hardly be a satisfactory way of dealing with the matter. Since the authority did not exercise his own judgment in the matter and faithfully followed the instructions conveyed to him by the higher authority, the whole procedure can be said to be contrary to the principles of natural justice. 4.8. The procedure adopted, in the present case, by initiating proceeding under Section 73 of the GST Act is unfair and calculated to undermine the confidence of the public in the impartial and fair administration of the GST Organisation. The exercise of quasi judicial powers by any officer without application of mind and/or at the instance of the superior officer is without jurisdiction and untenable in law. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 21 of 50 4.9. It is transpired from DSCN and Summary Show Cause Notice (Annexure-1 and 1A respectively) read with the Review Order along with the written instruction that in the garb of giving effect to the Review Order of the Commissioner, the GST Organisation is making endeavour to nullify the effect of Order-in-Appeal passed by the Additional Commissioner-Appellate Authority. Hence, the exercise of power under Section 73 by a subordinate authority (Joint Commissioner) contemplating adjudication of self-same issue that was addressed to and decided by the Appellate Authority (Additional Commissioner), which in the opinion of this Court, is unwholesome, arbitrary, in excess of jurisdiction and whimsical. 4.10. Conspectus of Goodage Rubber Works Vrs. State of UP, (2004) 137 STC 253 (All); and Balaji Computers Vrs. State of Karnataka, (2006) 147 STC 269 (Kar) would indicate that when the administrative head of the Department, who is conferred with the powers of giving instructions, has issued instructions/directions which are required to be followed by them, but when he warns them that any default or failure on their part in not following the instructions scrupulously would be viewed seriously, can it be expected that they would exercise their discretion conferred on them under the Act independently while proceeding to consider the returns Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 22 of 50 submitted by the assessee or while exercising their power of reassessment? Merely because, the provision of the statute prohibits the Commissioner to give any instruction which interferes with the power of the Appellate Authority, it is not possible to even remotely think that the concerned Authorities will go against the instructions given by the Commissioner in circular and give any scope for any disciplinary proceedings against them. Going against the instructions may attract disciplinary proceedings resulting in the removal of the officer from service. In such a case filing an objection before the authorities would be an empty formality. Such a remedy available to the assessees cannot be considered, in the eye of law, as an effective alternative remedy. Though the statute prohibits the Commissioner from issue of any instructions which interferes with the discretion of the Appellate Authority, once such instructions are given, it is not reasonable to expect that even such Appellate Authorities who are subordinate to the Commissioner, would go against the instructions given by the Commissioner and take a view different to the one expressed by the Commissioner in his instructions circular. It is not appropriate for the Commissioner to interfere in the discretion of the taxing authorities for which they would fail in applying their mind independently. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 23 of 50 4.11. Looked at the matter with the aforesaid perspective, the present case is classic example, where the Review Order of the Commissioner, i.e., an administrative decision whether to challenge the Refund Sanction Order in appeal in view of Section 107(2), is attempted to be justified by initiation of proceeding under Section 73 of the GST Act by the Joint Commissioner of Goods and Services Tax and Central Excise (a subordinate authority of the Commissioner), even as the Appellate Authority has discussed and decided same issues/grounds in favour of the petitioner. It is, thus, patent on record that the proceedings under Section 73 is, in effect, initiated to review the Refund Sanction-cum-Speaking Order dated 23.08.2024, after challenging said order unsuccessfully in the appeal under Section 107. A review, as is well-known, is a proceeding which exists by virtue of statute. 4.12. Law is no more res integra that adjudication process in tax matters are quasi judicial proceedings. In Nirmal Chandra Panigrahi Vrs. State of Odisha, 2021 SCC OnLine Ori 807 this Court observed as follows: ―23. In Westminster Corpn. Vrs. L.&N. Ry., (1905) AC 426 it was held that it is a condition of any statutory power that it must be exercised reasonably, and without negligence. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 24 of 50 24. In Cf. Karnapura Development Co. Vrs. Kamakshya Narain, 1956 SCR 325, the Apex Court held that it is a condition of any statutory power that it must be exercised bona fide. 25. In Commissioner of Police, Bombay Vrs. Gordhandas Bhanji, AIR 1952 SC 16, the Apex Court observed as follows: ‗10. *** Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. *** 28. *** An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled. ***‘ 26. In Sirsi Municipality Vrs. Cecelia Kom Francis Tellis, (1973) 1 SCC 409 = AIR 1973 SC 855, the Apex Court observed that, ―the ratio is that the rules or the regulations are binding on the authorities‖. 27. The issue of writ of mandamus is a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directing to any person, Corporation, requiring him or them to do some particular thing specified in it which Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 25 of 50 appertains to his or their office and is in the nature of a public duty. 28. In Comptroller and Auditor-General of India Vrs. K.S. Jagannathan, (1986) 2 SCC 679 = (1986) 2 SCC 679 = AIR 1987 SC 537, the Apex Court observed: ‗20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such direction or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 26 of 50 should have passed or given had it properly and lawfully exercised its discretion.’ ***‖ 4.13. In State of Odisha Vrs. Pratima Mohanty, (2021) 9 SCR 335 it is stated as follows: ―8. At this stage, the decision of the Karnataka High Court in the case of K. Raju Vrs. Bangalore Development Authority in Writ Petition No.11102 of 2008 decided on 15.12.2010 [reported at, 2010 SCC OnLine Kar 4322 = ILR 2011 Kar 120] dealing with a somewhat similar situation with respect to the allotment of plots in discretionary quota is required to be referred to. In that case also it was a case of allotment of the plots illegally and arbitrarily in the discretionary quota. Speaking from the Bench Justice S. Abdul Nazeer, J. as he then was has observed and held as under: „It is well established that a public body invested with statutory powers has to take care not to exceed or abuse its powers. It must act within the limits of authority committed to it.’ ‗31. BDA is the custodian of public properties. It is not as free as an individual in selecting the recipients for its largess. For allotment of the properties, a transparent, and objective criteria/procedure has to be evolved based on reason, fair play and non-arbitrariness. In such action, public interest has to be the prime guiding consideration. In Ramana Dayaram Shetty Vrs. The International Airport Authority of India, AIR 1979 SC 1628, the Apex Court Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 27 of 50 has held that it must therefore be taken to be the law that even in the matter of grant of largesses including award of jobs, contracts, quotas, licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of land. In Common Cause, A Registered Society Vrs. Union of India, (1996) 6 SCC 530, the Apex Court has held as under: The Government today in a welfare State provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pumps, gas agencies, mineral leases in contracts, quotas and licences etc., Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people‘s property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people In Onkar Lal Bajaj and Ors. Vrs. Union of India, (2003) 2 SCC 673, the Apex Court has summarised the cardinal principles of governance, which is as follows: 35. The expression ‗public interest’ or ‗probity in governance’ cannot be put in a straitjacket. ‗Public interest’ takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 28 of 50 whether Government action was taken in public interest or was taken to uphold probity in governance. 36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base a transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principles of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.’ 8.1 It is further observed after referring to the decision of this Court in the case of Common Cause, A Registered Society (supra) that if a public servant abuses his office whether by his act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. It Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 29 of 50 is further observed that no public servant can arrogate to himself powers in a manner which is arbitrary. In this regard we wish to recall the observations of this Court as under: ‗The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities.’ [See Delhi Airtech Services (P) Ltd. Vrs. State of U.P., (2011) 9 SCC 354] ‗The higher the public office held by a person the greater is the demand for rectitude on his part.’ [See Charanjit Lamba Vrs. Army Southern Command, (2010) 11 SCC 314] ‗The holder of every public office holds a trust for public good and therefore his actions should all be above board.’ [See Padma Vs. Hiralal Motilal Desarda, (2002) 7 SCC 564] ‗Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good.’ [See Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 30 of 50 Shrilekha Vidyarthi (Kumari) Vs. State of U.P., (1991) 1 SCC 212] „Public authorities should realise that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency.’ [See ICAI Vs. Shaunak H. Satya, (2011) 8 SCC 781] ***‖ 4.14. In Orissa Metaliks Pvt. Ltd. Vrs. State of Odisha, AIR 2021 Ori 85 the following is the observation: ―There is also merit in the contention, based on the judgment of this Court in Rashmi Cement Ltd. Vrs. State of Odisha, 113 (2012) CLT 177, which in turn followed the judgment of the Supreme Court in Commissioner of Police Vrs. Gordhan Das Bhanji, AIR 1952 SC 16 that a quasi judicial authority vested with the power for cancellation of a license, could not have acted under the ‗dictation’ of another authority. Also the impugned action of suspension of the issuance of transit passes ought to have been preceded by an enquiry, that prima facie discloses wrong doing by Petitioner No.1 in the form of violation of the terms of the license. The suspension of a licence even before the inquiry reveals prima facie violation of the terms of the license would obviously be vulnerable to invalidation on the ground of it being arbitrary and irrational.‖ 4.15. In State of Uttar Pradesh Vrs. Maharaja Dharmander Prasad Singh, (1989) 1 SCR 176 it has been observed as: ―It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 31 of 50 quasi judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the Authority’s discretion that is exercised, but someone else‘s. If an authority ‗hands over its discretion to another body it acts ultra vires’. Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smith sums up the position thus: ‗The relevant principles formulated by the courts may be broadly summarised as follows: The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 32 of 50 exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.’***‖ 4.16. In Union of India Vrs. Kamlakshi Finance Corporation Ltd., AIR 1992 SC 711 the Supreme Court had directed the department to adhere to the judicial discipline and give effect to the orders of higher appellate authorities which are binding on them. The relevant observations of made therein are required to be noted which read thus: ―6. *** The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assesse caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 33 of 50 subordinate authorities. The mere fact that the order of the appellate authority is not “acceptable” to the department— in itself an objectionable phrase— and is the subject- matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. *** 8. *** The observations of the High Court should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them.‖ 4.17. In the case of Tirupati Balaji Developers Private Ltd. Vrs. State of Bihar, (2004) 5 SCC 1, the Supreme Court held thus: ―The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by Their Lordships of the Privy Council in Nagendra Nath Dey Vrs. Suresh Chandra Dey, AIR 1932 PC 165 (Sir Dinshah Mulla speaking for the Bench of five), an appeal is an application by a party to an appellate court asking it to set aside or revise a decision of a Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 34 of 50 subordinate court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of the Full Bench (of five Judges) in Chappan Vrs. Moidin Kutti (1899) 22 ILR Mad 68 (at page 80) stated, inter alia, that appeal is ‗the removal of a cause or a suit from an inferior to a superior judge or court for re-examination or review‘. According to Wharton’s Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior court. In consonance with this particular meaning of appeal, „appellate jurisdiction’ means „the power of a superior court to review the decision of an inferior court.’ „Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. This has been well put by Story: ‗The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial Tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised, (Section 1761, Commentaries on the Constitution of the United States).‘ ***‖ 4.18. In Orissa Forest Corporation Ltd. Vrs. Assistant Collector, 1982 SCC OnLine Ori 209 this Court made the following observation: Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 35 of 50 ―4. We do not think this should be the attitude of the Union Government. The demand is under the Statute and the statutory appellate authority, on the set of facts which are common both to the period when relief was granted and the period for which the impugned demand has been made, has already determined that no levy is exigible. As long as the appellate order stands, it must be duly respected and only when the revisional authority vacates the order and holds that the decision of the appellate authority is wrong and the demand was justified, no demand should be raised. It has been indicated on more than one occasions by the Supreme Court with reference to directions of the Appellate Tribunal under the Income Tax Act that such directions are binding and decisions rendered by appellate authorities should be respected by the subordinate revenue authorities and no attempt should be made to wriggle out of the binding decisions of higher authorities as long as they remain in force. The same principle should be applied to the present set of facts and we are, therefore, inclined to take the view that the demand under Annexure-4 should be set aside but we would make it clear that in the event of the appellate orders being vacated, under the Statute the liability would revive and notwithstanding our quashing Annexure-4 the statutory authority would be entitled to raise a demand in terms of the decision which may be ultimately sustained under the Statute.‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 36 of 50 4.19. The following dicta laid down in BSNL Vrs. Union of India, (2006) 3 SCC 1 may usefully be kept in mind in the present context: ―20. The decisions cited have uniformly held that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar courts from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The Courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position. The reason why the Courts have held parties to the opinion expressed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi-judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per incuriam. However, these are fetters only on a coordinate Bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a Bench of superior strength or in some cases to a Bench of superior jurisdiction.‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 37 of 50 4.20. With such conspectus of legal perspective of sanctity attached to the Appellate Orders, it can be said in the present context that so long as the Order-in-Appeal passed by the Additional Commissioner-Appellate Authority vide Annexure-9 stands, the DSCN dated 25.09.2025 (Annexure-1) and Summary Show Cause Notice dated 28.10.2025 (Annexure-1A) issued by the Joint Commissioner, Bhubaneswar based on administrative decision vide Review Order dated 20.02.2025 raising the same issue which had already been adjudicated by the Appellate Authority on merit cannot be sustained. 4.21. Needless to say that the Review Order of the Commissioner directing the subordinate authority to file appeal being carried out it lost its force inasmuch as consequent upon filing of appeal, the same got disposed of. Regard being had to the legal position as to the effect of order passed in appeal on the subordinate authorities as discussed above, the Joint Commissioner in his discussion in Demand-cum-Show Cause Notice in exercise of power under Section 73 has overstepped his jurisdiction by differing with the findings of the Appellate Authority; thereby he seems to have committed error of record and his decision to revive the Review Order of the Commissioner in the garb of Demand-cum-Show Cause Notice is tainted inasmuch as he cannot sit over the Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 38 of 50 quasi judicial decision of the Appellate Authority in the appeal under Section 107. Therefore, this Court has no other option than to interfere with the Demand-cum- Show Cause Notice dated 25.09.2025 and the Summary Show Cause Notice dated 28.10.2025. 5. The GST Act and the Rules framed thereunder are self- contained Code. The GST Organisation and the functionaries working thereunder are not remediless to question the legality of the final order passed by the Appellate Authority. It could have availed the remedy provided under the statute, but not to adhere to subterfuge by taking recourse of Section 73 by a subordinate officer omitting to take cognizance of findings and observations made by the Appellate Authority. Adopting the mechanism to adjudicate by exercise of power under Section 73 to consider the issue which had already decided in the appeal filed by the GST Organisation constitutes a procedural irregularity imperilling the right of the petitioner and such exercise of power is an attempt to circumvent established legal process. Judicial decorum mandates to follow rule of law and the quasi judicial orders are to be respected by the subordinate authorities so long as the orders of the higher authority on particular issue subsists. The Review Order of the Commissioner directing the subordinate authority to prefer appeal is in the nature of Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 39 of 50 administrative order, which lost its significance on the adjudication of issues raised in the appeal by the GST Organisation after hearing not only the counsel for the petitioner but also the authority concerned. 5.1. The Assistant Commissioner was the first authority who examined the records while considering the refund application; thereafter the Additional Commissioner as appellate authority adjudicated the validity of grant of refund in the appeal filed upon direction of the Commissioner. Both the authorities, namely the Additional Commissioner as Appellate Authority and the Assistant Commissioner as Refund Sanction Authority, have discharged their quasi judicial functions and duties being statutory functionaries. Thereafter now on the self- same issues which were considered by the Appellate Authority in appeal filed by the GST Organisation, the Joint Commissioner issued DSCN and Summary SCN exercising power under Section 73. The written instructions imparted to the learned Senior Standing Counsel reveals that the GST Organisation is still under process of exploring possibility to seek appellate remedy before the GSTAT. By adjudicating the issue of erroneous sanction of refund in pursuance of application made by the petitioner under Section 73 of the GST Act the Joint Commissioner cannot set the Appellate Order at naught, which is impermissible in law. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 40 of 50 5.2. The aforesaid events and eventualities suggest that the GST Organisation is hell-bent to adjudicate the issues again which are settled by the Appellate Authority on facts based on evidence available on record. Glance at sub-section (16) of Section 107 makes it abundantly clear that “Every order passed under this section shall, subject to the provisions of Section 108 or Section 113 or Section 117 or Section 118 be final and binding on the parties”. Since nothing is brought on record or has it been spelt out in the written instructions imparted to the learned Senior Standing Counsel, that the Appellate Order dated 07.08.2025 (Annexure-9) has been varied or reversed in any of the higher forum, the Joint Commissioner is estopped from raising the same issue relating to grant of refund pertaining to input tax credit, emanating from application for refund made by the petitioner, which was subject matter of appeal. 5.3. In Ishwar Dutt Vrs. Collector (LA), (2005) 7 SCC 190 it has been pointed out that res judicata is a species of principle of estoppel. It is enunciated in the said reported judgment as follows: ―18. In the Reference Court or for that matter the High Court exercising its appellate jurisdiction under Section 54 of the Act could not have dealt with the said question. The principle of res judicata is a specie of the principle of estoppel. When a proceeding based on a particular cause of Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 41 of 50 action has attained finality, the principle of res judicata shall fully apply. 19. Reference in this regard may be made to Wade and Forsyth on Administrative Law, 9th Edn., p. 243, wherein it is stated: ‗One special variety of estoppel is res judicata. This results from the rule which prevents the parties to a judicial determination from litigating the same question over again, even though the determination is demonstrably wrong. Except in proceedings by way of appeal, the parties bound by the judgment are estopped from questioning it. As between one another, they may neither pursue the same cause of action again, nor may they again litigate any issue which was an essential element in the decision. These two aspects are sometimes distinguished as ‗cause of action estoppel‘ and ‗issue estoppel‘.‘ 20. In Hope Plantations Ltd. Vrs. Taluk Land Board, (1999) 5 SCC 590 this Court observed: ‗31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 42 of 50 the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum.‘ 21. In The Doctrine of Res Judicata, 2nd Edn. by George Spencer Bower and Turner, it is stated: ‗A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it. ***‘ 22. Reference, in this connection, may also be made to Ram Chandra Singh Vrs. Savitri Devi, (2003) 8 SCC 319. 23. Yet recently in Swamy Atmananda Vrs. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 in which one of us was a party, this Court observed: ‗26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 43 of 50 bring the litigation to an end so that the other side may not be put to harassment. 27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment.‘ It was further noticed: ‗42. In Ishwardas Vrs. State of M.P., (1979) 4 SCC 163 this Court held: ‗In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim.‘ ‘ 24. Yet again in Arnold Vrs. National Westminster Bank Plc., (1991) 3 All ER 41 the House of Lords noticed the distinction between cause of action estoppel and issue estoppel: ‗Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been litigated between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 44 of 50 The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened. … Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue.‘ Here also the bar is complete to re-litigation but its operation can be thwarted under certain circumstances. The House then finally observed: ‗But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success.‘ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 45 of 50 25. In Gulabchand Chhotalal Parikh Vrs. State of Bombay, (1965) 2 SCR 547 = AIR 1965 SC 1153 the Constitution Bench held that the principle of res judicata is also applicable to subsequent suits where the same issues between the same parties had been decided in an earlier proceeding under Article 226 of the Constitution. 26. It is trite that the principle of res judicata is also applicable to the writ proceedings. (See H.P. Road Transport Corpn. Vrs. Balwant Singh, 1993 Supp (1) SCC 552.) 27. In Bhanu Kumar Jain Vrs. Archana Kumar, (2005) 1 SCC 787 it was held: ‗18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal Vrs. Deorajin Debi, (1960) 3 SCR 590 = AIR 1960 SC 941 and Prahlad Singh Vrs. Col. Sukhdev Singh, (1987) 1 SCC 727.) 19. In Y.B. Patil Vrs. Y.L. Patil, (1976) 4 SCC 66 it was held: ‗4. *** It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.‘ ‘ It was further observed: Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 46 of 50 ‗31. In a case of this nature, however, the doctrine of ‗issue estoppel‘ as also ‗cause of action estoppel‘ may arise. In Thoday Vrs. Thoday, (1964) 1 All ER 341 Lord Diplock held: ‗*** ‗cause of action estoppel‘, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment…. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam.‘ 32. The said dicta was followed in Barber Vrs. Staffordshire County Council, (1996) 2 All ER 748 (CA). A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided, save and except allegation of fraud and collusion. [See C. (A minor) Vrs. Hackney London Borough Council, (1996) 1 All ER 973.]‖ (See The Doctrine of Res Judicata, 2nd Edn. by Spencer Bower and Turner, p. 149.)‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 47 of 50 5.4. This Court in Itishree Swain Vrs. State of Odisha, W.A. No.616 of 2025, vide Order dated 25.06.2025, succinctly explained the concept of “issue estoppel” by observing thus: ―Furthermore, the Court cannot issue a writ of mandamus upon the authorities to act contrary to law nor the judicial discipline demands a departure from the earlier decision which attained finality. The principle of ―issue estoppel‖ akin to ―res judicata‖ has its applicability. If the issue which was directly and substantially an issue in the earlier proceeding has been decided by a competent Court, such issue cannot be re-agitated and/or decided by a Court in a subsequent proceeding. The contention of the appellant that the cause of action in the earlier writ petition and the cause of action in the subsequent writ petition are different, is unacceptable for the reason that the real issue involved in the litigation is whether the appellant, who admittedly crossed the outer age limit, may be permitted to offer the candidature in pursuance of the said recruitment process. Once the Court has decided that the appellant is not entitled to offer the candidature having crossed the outer age limit, even if in a subsequent writ petition the challenge is shown to the decision of the authorities in not offering the appointment is in effect based upon a conscious decision that the appellant was ineligible to offer her candidature having crossed the outer age limit. The genesis of the decision of the authority is founded upon the factum of the age barrier. It becomes an issue primarily and substantially in the subsequent writ petition.‖ Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 48 of 50 5.5. “Estoppel” has been discussed in B.L. Sreedhar Vrs. K.M. Munnireddy, (2002) Supp.4 SCR 601 and the excerpt relevant for the current purpose runs as follows: ―On the whole, an estoppel seems to be when, in consequences·of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim, allegans contrarir non est audiendus (a party is not be heard to allege the contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebutable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done; it is in truth a kind of argumentum ad hominem. *** ‗An estoppel is not a cause of action— it is a rule of evidence which precludes a person from denying the truth of some statement previously made by himself.‘ Per Lindley L.J. in Low Vrs. Bouveria, (1831) 3 Ch. 82 at p.101. In the same case, at p.105, Bowen L.J. added: ‗Estoppel is only a rule of evidence; you cannot found an action upon estoppel.‘ Estoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law insofar as it helps to create or defeat rights, which would not exist or be taken away but for that doctrine.‖ 5.6. As is apparent from the papers enclosed to writ petition it is unambiguous that the context of invoking power under Section 73 by the Joint Commissioner is the same as that of the issue raised and decided by the Appellate Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 49 of 50 Authority-Additional Commissioner (Appeals) on merit. It is the fact on record that on the direction of the Commissioner vide Review Order in terms of Section 107(2) the subordinate authority preferred appeal which got finally disposed of by the Additional Commissioner (Appeals) upholding the entitlement of refund granted by the Assistant Commissioner in favour of the petitioner and after disposal of the appeal against the Revenue, the said Review Order is founded upon to issue Demand- cum-Show Cause Notice and Summary Show Cause Notice (Annexures-1 and 1A respectively) by the Joint Commissioner under Section 73 of the GST Act. 5.7. On the principles of res judicata and issue estoppel propounded by the Courts referred to supra, being conscious of what has been exposited in BSNL Vrs. Union of India, (2006) 3 SCC 1, as the issue of grant of refund by the Assistant Commissioner got finally decided in the Appeal with respect to sanction of refund on computation of eligible input tax credit, the recourse to adjudicate upon the same objection/content under Section 73 without giving due deference to the quasi judicial Appellate Order is unconscionable. 6. In the wake of above discussions and analysis of legal perspective, the Demand-cum-Show Cause Notice dated 25.09.2025 in Form GST DRC-1 issued by the Joint Commissioner Goods and Services Tax and Central Printed from counselvise.com W.P.(C) No.35050 of 2025 Page 50 of 50 Excise, Bhubaneswar Commissionerate, Bhubaneswar (opposite party No.1) vide Annexure-1 and the Summary Show Cause Notice dated 28.10.2025 in Form GST DRC- 01 vide Annexure-1A contemplating adjudication under Section 73 of the GST Act with respect to grant of refund pertaining the tax periods from 01.04.2022 to 31.03.2024, being inexplicable, are hereby set aside. 7. Ergo, the writ petition is allowed and pending interlocutory applications, if any, shall stand disposed of, but in the circumstances there shall be no order as to costs. I agree. (HARISH TANDON) (MURAHARI SRI RAMAN) CHIEF JUSTICE JUDGE High Court of Orissa, Cuttack The 18th December, 2025//Bichi/Aswini Printed from counselvise.com Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Dec-2025 14:07:20 Signature Not Verified "