2020 (9) TMI 348 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - refund of unutilized ITC - inverted duty structure - Circular No.59/33/2018-GST dated 04.09.2018 - HELD THAT - Since an efficacious statutory remedy is available to the petitioner to assail the legality and validity of the order passed under Annexure-5, this Court should be slow in entertaining the writ petition at this stage. The petitioner has also not made out any ground for interference with the order under Annexure-5 in a writ petition which he cannot raise before the Appellate Authority. The grounds raised by the petitioner can be considered by the Appellate Authority in exercise of power under Section 107 of the Act. This Court without interfering with the impugned order under Annexure-5, disposes of this writ petition granting liberty to the petitioner-Company to assail the legality and validity of Annexure-5 under Section 107 of the Act - Petition disposed off.

Summary

Issues:
Prayer for setting aside Assistant Commissioner's order rejecting refund of unutilized ITC due to inverted duty structure and direction for a reasoned order. Maintainability of writ petition against availability of statutory appeal under Section 107 of the Act. Validity of non-speaking order and lack of opportunity of hearing.

Analysis:

1. Prayer for Setting Aside Order: The petitioner, a fertilizer manufacturer, sought direction to quash the Assistant Commissioner's order rejecting the refund of unutilized Input Tax Credit (ITC) due to an inverted duty structure. The petitioner contended that most inputs and input services attracted a higher GST rate compared to outward supplies, entitling them to the refund. The Assistant Commissioner issued a show-cause notice proposing the refund rejection, to which the petitioner replied. However, the Assistant Commissioner passed the impugned order without considering the petitioner's response, prompting the petitioner to challenge the order for lack of reasoning and non-application of mind.

2. Maintainability of Writ Petition: The Senior Standing Counsel for CGST and Central Excise argued that the petitioner had an alternative statutory remedy under Section 107 of the Act to appeal the order. Therefore, the writ petition was deemed not maintainable. The petitioner did not contest this point but highlighted the void nature of the non-speaking order passed without affording an opportunity of hearing, emphasizing the need for a reasoned decision.

3. Validity of Order and Opportunity of Hearing: Both parties acknowledged the availability of a statutory appeal for challenging the order. The Court, considering the submissions, opined that the petitioner should pursue the remedy under Section 107 of the Act to address the legality and validity of the order. The Court noted that the petitioner failed to establish grounds for interference through a writ petition that could be raised before the Appellate Authority. Consequently, the Court disposed of the writ petition, granting the petitioner liberty to challenge the order under Section 107 of the Act.

4. Disposition and Future Course: The Court disposed of the writ petition, advising the petitioner to utilize the statutory appeal mechanism under Section 107 of the Act within 15 days. The Appellate Authority was directed to examine the applicability of the Circular dated 04.09.2018 while disposing of the appeal within three months. Additionally, due to the ongoing COVID-19 lockdown, the petitioner's counsel was permitted to use the soft copy of the order available on the High Court's website for necessary actions.