2023 (8) TMI 103 - HC - GST

Maintainability of petition - availability of alternative remedy - opportunity of personal hearing not provided - Classification of goods - rate of tax - trading in Gloriosa Superba Seed - comes under entry 88 in the Notification No.2 dated 28.06.2017 or under entry 73 in the Notification No.1 dated 28.06.2017 - HELD THAT - The Learned Counsel appearing for the respondents submitted that the petitioner is having alternative remedy of filing statutory appeal. But the Learned Senior Counsel appearing for the petitioner submitted that the respondents have not granted sufficient opportunity and relied on the impugned order wherein it is stated that personal hearing opportunities was granted on 06.09.2022, 08.09.2022 and 09.09.2022 vide letter dated 29.08.2022, 06.12.2022 vide letter dated 29.12.2022 and 12.12.2022 vide letter dated 29.11.2022. It is impossible to attend the hearing on 06.12.2022 when the notice dated 29.12.2022 was issued. However the Learned Counsel appearing for the respondents strongly opposed this plea and produced the hearing sheet to substantiate that opportunity was granted and the petitioner attended the hearing on 06.09.2022. Even according to the petitioner he had attended the PH on 06.09.2022 and sought time to file written submission. It is seen that the date of the order is 27.12.2022, which means the order is passed even prior to the hearing notice dated 29.12.2022. Therefore this Court is of the considered opinion that the petitioner deserves opportunity, since effective opportunity was not granted to the petitioner. Therefore, the impugned order is liable to be quashed and hence, the impugned order is quashed. Since the petitioner had already paid the GST liability, the impugned order is passed for interest and penalty coupled with the fact that the question of applicability of exemption is raised, this Court decline the plea of the respondents. Petition allowed.

Summary

Issues:
The judgment involves the quashing of an order imposing interest and penalty for delayed payment of GST on agricultural products, specifically "Gloriosa Superba Seed," due to classification and applicability disputes under Notification No.1 and 2 dated 28.06.2017.

Classification and Applicability Dispute:
The petitioner contended that the "Gloriosa Superba Seed" falls under entry 88 of Notification No.2 dated 28.06.2017, granting exemption, while the respondents argued it falls under entry 73 of Notification No.1 dated the same day, attracting 5% tax. The impugned order failed to address this classification issue, leading the court to conclude that the petitioner's claim should be considered, ultimately quashing the order.

Opportunity for Hearing:
The petitioner claimed insufficient opportunity for a fair hearing, as the order was passed before the scheduled hearing dates, indicating a lack of effective opportunity. The court agreed that the petitioner deserved a proper opportunity and quashed the order based on this ground.

Direction and Conclusion:
The court directed the petitioner to reply to the show cause notice within six weeks, granting a personal hearing and concluding the assessment within four months thereafter. The writ petition was allowed without costs, closing the connected miscellaneous petition.