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2024 (1) TMI 1013 - HC - GSTMaintainability of writ petition - Demand of GST on nfrastructure Development Cess and Environment Cess - availability of alternate efficacious remedy of appeal under Section 107 of the GST Act - Petitioner contends that adherence to departmental circulars by appellate authorities may prejudice the appeal, violating the principles of natural justice. - HELD THAT - From bare perusal of the Section it is quite vivid that the person aggrieved by any decision or order under this Act or the State GST Act or Union Territory Goods and Service Tax by an adjudicating authority may appeal to the Appellate Authority as may be prescribed within 3 months from the date on which the said decision or order is communicated to such person. The subclause of 4 also provides further period of 1 month within the aforesaid period of 3 months or 6 months as the case may be. The petitioner is taking specific stand that there is no nexus of imposing GST liability with regard to Cess. This is a legal issue which can very well be examined and determined by the appellate authority, as such the submission made by the learned counsel for the petitioner that the appellate authority is bound with the circular is not applicable in the present facts in view of specific stand taken by the petitioner in the reply submitted by them before the adjudicating authority. Hon'ble Supreme Court in case of The State of Madhya Pradesh and Another vs M/s Commercial Engineers and Body Building Company Ltd Civil Appeal No. 7170 of 2022 dated 14.10.2022 2022 (10) TMI 576 - SUPREME COURT has considered the alternate remedy of filing of appeal under the M.P. Value Added Tax, 2002 and has held If such an appeal is preferred within a period of four weeks from today, the same be entertained and decided and disposed of on merits without raising an issue with respect to limitation, however, subject to compliance of the statutory requirements, if any, for preferring an appeal under Section 46(1) of the MP VAT Act, 2002. Thus, it is quite vivid that the petitioner has alternate and efficacious remedy of appeal available as provided under Section 107 of the GST Act, the writ petition is not maintainable - Accordingly this writ petition is disposed off directing the petitioner to take appropriate remedies which are available in terms of Section 107 of the GST Act.
Issues Involved:
1. Legality, validity, and propriety of the order confirming GST demand. 2. Maintainability of the writ petition in light of the alternate remedy of appeal under Section 107 of the GST Act. Issue 1: Legality, Validity, and Propriety of the GST Demand Order The petitioner, a public limited company engaged in the manufacture and supply of cement, challenged the order dated 26.09.2023 by the Additional Commissioner (CGST and Central Excise), Raipur, which confirmed the demand for GST amounting to Rs. 14,35,54,944/- (CGST Rs. 7,17,77,472/- + SGST Rs. 7,17,77,472/-) along with interest and penalty on the Development Cess and Environment Cess. The petitioner argued that the cesses paid under the Chhattisgarh (Adhosanrachna Vikas Evam Paryavaran) Upkar Adhiniyam, 2005, should not attract GST as there was no element of consideration or supply to attract GST under Section 7 of the GST Act. The petitioner contended that the state government was undertaking infrastructure and environment projects for the benefit of its citizens, not specifically for the petitioner. Issue 2: Maintainability of the Writ Petition The respondent argued that the petitioner had an alternate remedy of filing an appeal against the order of the Additional Commissioner as provided under Chapter XVIII of the GST Act, 2017, and thus, the writ petition was not maintainable. The petitioner countered that the appellate authority would be bound by departmental circulars under Section 168 (1) of the GST Act, making the appeal a mere formality and prejudiced against the principle of natural justice. The petitioner cited Supreme Court judgments in M/s Filterco and Another vs Commissioner of Sales Tax, Madhya Pradesh and Another and M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Others to argue that the High Court should examine the merits of the case despite the availability of an alternate remedy. Court's Decision The court held that the writ petition was not maintainable due to the availability of an alternate and efficacious remedy of appeal under Section 107 of the GST Act. The court directed the petitioner to file an appeal within 30 days, ensuring that neither the appellate authority nor the respondents would take the plea of limitation. The appellate authority was instructed to decide the appeal on its merits without being influenced by the court's observations. The court did not go into the merits of the case but focused on the issue of alternate remedy available to the petitioner.
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