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2020 (4) TMI 175 - HC - GSTRejection of appeal as not maintainable - Appeal-able order - Filing of appeal before the Adjudication order - detention of goods alongwith the vehicle - Invalid E-way bill - Section 129(5) of the CGST Act 2017 Kerala State GST Act, 2017 - HELD THAT - This is a fit case where interference under Article 226 of the Constitution of India is warranted. On a plain and simple reading of the provisions of the Act, sub-section (3) of Section 129 envisages that the proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c) and on payment of the amount referred to in sub-section (1) all the proceedings in respect of notice specified in subsection (3) shall be again to be concluded. The expression 'order' used in sub-section (3) can in common wording can construed to be an order. The litigants do not have the acumen of legalities of the order particularly when the word 'order' is reflected in sub-section (3). Impugned order set aside - Appeal is restored granting liberty to the petitioner to challenge the order dated 21.11.2018 in accordance with law.
Issues Involved:
1. Interpretation of Ext.P4 as an adjudication order under Section 129(5) of the CGST Act 2017 & Kerala State GST Act, 2017. 2. Validity of the appeal filed against Ext.P4. 3. Maintainability of the appeal against Ext.P4. 4. Request for restoration of the appeal. Analysis: Issue 1: Interpretation of Ext.P4 as an adjudication order The primary issue in this case pertains to determining whether Ext.P4, dated 28.09.2018, demanding tax and penalty from the petitioner due to the detention of the vehicle and goods, qualifies as an adjudication order under Section 129(5) of the CGST Act 2017 and Kerala State GST Act, 2017. The court observed that as per Section 129(3) of the Act, the proper officer detaining goods is required to issue a notice specifying the tax and penalty payable, followed by passing an order for payment. The court highlighted that the term 'order' in sub-section (3) could reasonably be construed as an order, especially considering the common understanding of the term. This interpretation guided the court's decision-making process regarding the nature of Ext.P4. Issue 2: Validity of the appeal against Ext.P4 The petitioner filed an appeal under Section 107 of the Act against Ext.P4, which was dismissed on the grounds of non-appealability. The court considered the timeline of events, noting that the adjudication order (Ext.P9) was issued during the pendency of the appeal against Ext.P4. The court opined that the appeal could have been rectified by amending it to challenge the adjudication order directly. The court criticized the rigid approach taken by the authorities in rejecting the appeal, emphasizing the need for flexibility in interpreting procedural requirements to ensure justice. Issue 3: Maintainability of the appeal against Ext.P4 During the proceedings, the State argued that the appeal should have been filed only against Ext.P9, not Ext.P4. However, the petitioner's counsel contended that the appeal sought restoration with the liberty to challenge Ext.P9. The court acknowledged the confusion regarding the appropriate order to appeal against and ultimately set aside the impugned order (Ext.P8) and restored the appeal, granting the petitioner the liberty to challenge the adjudication order (Ext.P9) in accordance with the law. Issue 4: Request for restoration of the appeal The petitioner's sole prayer in the writ petition was for the restoration of the appeal, with the court recognizing the need for intervention under Article 226 of the Constitution of India. The court, after considering the arguments presented by both parties and examining the relevant legal provisions, concluded that the impugned order (Ext.P8) was set aside, and the appeal was restored, allowing the petitioner to challenge the adjudication order (Ext.P9) as per the law. In conclusion, the High Court of Kerala, through a detailed analysis of the legal provisions and procedural aspects, intervened to ensure justice by setting aside the impugned order and restoring the appeal, thereby granting the petitioner the opportunity to challenge the adjudication order in accordance with the law.
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