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2023 (8) TMI 1215 - HC - GSTImplementation of order passed by the appellate authority - non-constitution of Tribunal - maintainability of petition filed under Article 227 of the Constitution of India. HELD THAT - Since in the case at hand, appellate Tribunal in terms of provisions contained under Section 109 of the Act, is yet to be constituted, there is otherwise no occasion, if any, for the petitioner to file appeal, laying therein challenge to the order passed by the appellate authority in the appellate tribunal, as a result of which, there is every likelihood of that respondent No.1 would compel the petitioner to implement/comply with the order passed by the appellate authority. Since there is specific provision of appellate Tribunal provided under the Act as detailed, coupled with the settled proposition of law that no person can be rendered remediless, this Court finds no force in the submission of learned Additional Advocate General that petition filed under Article 227 of the Constitution of India is not maintainable, rather this court is of the definite view that in given facts and circumstances of the case, petitioner had no option, but to approach this Court by way of petition filed under Article 227 of the Constitution of India, which otherwise empowers this Court to exercise supervisory powers over all the courts subordinates to it including the authorities exercising quasi judicial powers. In similar circumstances in ROCHEM INDIA PVT. LTD. 2023 (2) TMI 878 - BOMBAY HIGH COURT , High Court of Bombay having taken note of the fact that there is no appellate Tribunal, which was otherwise required to be constituted in terms of Section 109 of the Central Goods and Services Tax 2017 not only entertained the petition under Articles 226 and 227 of the Constitution of India, but also ordered that impugned order shall not be given effect until two weeks after the period prescribed for filing an appeal to the appellate authority under Clause-4.2 of the circular dated 18.5.2020, issued by the Central Board of Direct taxes is over. Since in the case at hand, appellate Tribunal in terms of provisions contained under Section 109 of the Act, is yet to be constituted, there is otherwise no occasion, if any, for the petitioner to file appeal, laying therein challenge to the order passed by the appellate authority in the appellate tribunal, as a result of which, there is every likelihood of that respondent No.1 would compel the petitioner to implement/comply with the order passed by the appellate authority - Since there is specific provision of appellate Tribunal provided under the Act as detailed herein above, coupled with the settled proposition of law that no person can be rendered remediless, this Court finds no force in the submission of learned Additional Advocate General that petition filed under Article 227 of the Constitution of India is not maintainable. This Court finds merit in the present petition and accordingly, same is allowed.
Issues Involved:
1. Non-constitution of the Appellate Tribunal under Section 109 of the Himachal Pradesh Goods and Services Tax Act, 2017. 2. Maintainability of the petition under Article 227 of the Constitution of India. 3. Interim relief sought by the petitioner. Summary: Issue 1: Non-constitution of the Appellate Tribunal The petitioner approached the High Court due to the absence of an Appellate Tribunal, which is mandated under Section 109 of the Himachal Pradesh Goods and Services Tax Act, 2017. The petitioner sought to challenge the order dated 19.5.2023, passed by the Commissioner (Appeals) HP Goods and Service Tax-cum-Divisional Commissioner, Shimla Division, which dismissed the appeal against the order dated 30.8.2022, passed by the Joint Commissioner of State Taxes and Excise, Central Enforcement Zone, Una. The petitioner argued that due to the non-constitution of the Appellate Tribunal, there was no effective remedy available. Issue 2: Maintainability of the petition under Article 227 The learned Additional Advocate General opposed the petition, arguing that it was not maintainable under Article 227 of the Constitution of India since a specific remedy was provided under the Act itself. However, the petitioner contended that in the absence of the Appellate Tribunal, the only available remedy was to file the petition under Article 227, which empowers the High Court to exercise supervisory jurisdiction over subordinate courts and quasi-judicial authorities. The court noted that the Ministry of Finance, Government of India, had issued orders and circulars to address the issue of the non-constitution of the Appellate Tribunal, extending the period for filing appeals until the tribunal becomes functional. Issue 3: Interim relief sought by the petitioner The petitioner sought a direction to the respondent not to act in furtherance of the order dated 19.5.2023, until the Appellate Tribunal is constituted and the appeal is filed within the prescribed period. The court found merit in the petition, referring to similar cases, including the judgment of the High Court of Bombay in Rochem India Pvt. Ltd. v. The Union of India and Ors., where the court had granted interim protection due to the non-constitution of the Appellate Tribunal. The court directed the respondent not to act on the order dated 19.5.2023, until the Appellate Tribunal is constituted and the petitioner files an appeal within the prescribed period as detailed in the circular dated 3.12.2019 issued by the Ministry of Finance, Government of India. Conclusion: The petition was allowed, directing the respondent not to act on the impugned order until the Appellate Tribunal is constituted and the appeal is filed within the extended period.
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