2023 (12) TMI 1284 - HC - GST

Demand of IGST wrongly claimed as refund - proceedings initiated against the petitioner resulting in the order impugned is based on a wrong premise - HELD THAT - It is not in dispute that pursuant to show cause notice issued to the petitioner, the petitioner only on account of pendency of DBCWP No.4465/2021, choose not to respond to the said show cause notice and put forth his response to the said show cause notice and insisted on the adjudication being deferred only on account of pendency of said petition. Apparently, even when the stay petition was rejected on 07.08.2023, despite such rejection also, no response was filed, however, the authority has passed a detailed speaking order dealing with all possible pleas raised by the petitioner. The submission made pertaining to the entitlement of the petitioner under Section 54 of the Act, which even otherwise is not a jurisdictional aspect, already stands examined and negated by the authority vide impugned order dated 30.10.2023 and the petitioner has to question the validity of said determination in accordance with law including filing of appeal under Section 107 of the Act. Thus, no case has been made out in the writ petition so as to invoke our extra ordinary jurisdiction under Article 226 of the Constitution of India on the settled parameters, based on which, the same can be invoked by this Court despite availability of remedy of appeal. Petition dismissed.

Summary

Issues involved:
The writ petition challenging the order confirming the demand of IGST wrongly claimed as refund.

Comprehensive details:
The petitioner claimed benefit of Rule 96 (10) of the CGST Rules but was not entitled to it. The petitioner argued that under Section 54 of the CGST Act, it was eligible for the refund. The respondents contended that the show cause notice was issued earlier, and the petitioner did not respond. Despite the rejection of the stay petition, the petitioner did not file a response. The authority passed a detailed order addressing all issues raised by the petitioner, including the entitlement under Section 54 of the Act, which was negated. The court held that the petitioner must question the validity of the determination through the appeal process under Section 107 of the Act.

The court considered the submissions of both parties and reviewed the available material on record. It noted that despite the rejection of the stay petition, the petitioner did not respond to the show cause notice. The court emphasized that the petitioner's entitlement under Section 54 of the Act had already been examined and rejected by the authority in the impugned order. The court concluded that no grounds were established in the writ petition to warrant the invocation of extraordinary jurisdiction under Article 226 of the Constitution of India, especially considering the availability of the appeal remedy as established in the case law of Godrej Sara Lee Ltd.

Therefore, the court dismissed the writ petition, allowing the petitioner to pursue the remedy of appeal as per the law.