2020 (1) TMI 1300 - HC - GST

Right to file an appeal before the Learned Tribunal under Section 112 of the West Bengal Goods and Services Tax Act, 2017 - HELD THAT - It is trite law that when an appeal provision has been provided under the statute, the Authorities are not allowed to recover the amount payable unless there are extenuating circumstances. In the present case the dispute is with regard to classification issue, and therefore, the authorities have acted in haste in recovering the entire amount within the period of three months wherein there is a provision of appeal under Section 112 of the said Act before the Appellate Court. The authorities have a right to recover only a sum up to 20% as per Section 112(8)(b) of the said Act. Anything over and above the same tantamounts to an excessive recovery made within the period of three months that is allowable for filing of appeal under Section 112 of the said Act - the authorities are directed to remit the excessive recovery to the bank account of the petitioner within a period of 15 days from date. Let this matter appear in the monthly list of cases for the month of March, 2020 under the heading for hearing .

Summary

Issues:
Recovery of excessive amount post orders by First Appellate Authority under Section 112 of West Bengal Goods and Services Tax Act, 2017.

Analysis:
The petitioner filed a writ petition under Article 226 of the Constitution of India, challenging the recovery of ?1,41,10,717 post orders dated September 30, 2019, and October 18, 2019, by the First Appellate Authority. The petitioner contended that they have the right to appeal before the Learned Tribunal under Section 112 of the said Act within three months of the First Appellate Authority's order, upon payment of 20% of the remaining tax amount in dispute. Since there was no Appellate Tribunal, the writ petition was filed before the High Court. The Court noted that recovery should not take place when an appeal provision exists, especially in cases like classification disputes. The authorities were deemed to have acted hastily by recovering the entire amount within the appeal period. The State's counsel argued that recovery was initiated due to a provisional attachment, but the Court held that recovery should have been limited to 20% as per Section 112(8)(b) of the Act. The Court directed the authorities to refund the excessive amount to the petitioner within 15 days and canceled the bank account attachment order, allowing the petitioner to operate the account.

The Court disposed of the application, stating that since no affidavit-in-opposition was called for, the allegations in the application were not deemed admitted by the respondents. The respondents were given four weeks to file an affidavit-in-opposition in the main writ petition, with a provision for the petitioner to file an affidavit-in-reply within two weeks thereafter. The matter was scheduled for the monthly list of cases for March 2020 under 'for hearing'.