2024 (5) TMI 1135 - HC - GST

Permission for prosecution independent of adjudication proceedings - pre-judging of issues in adjudication order - administrative satisfaction contemplated under Section 134 of the CGST Act - absence of petitioner in adjudication proceedings - HELD THAT - No useful purpose may be served in keeping this petition pending or calling for counter affidavit at this stage. This much is clear that the administrative satisfaction contemplated under Section 134 of the CGST Act, 2017 is to be recorded by the Commissioner. It is not to be dictated by any findings recorded in adjudication proceedings - At the same time, the Additional Commissioner who has passed the adjudication order is not the Commissioner. It is also true that the petitioner was not party to the adjudication proceedings and was not heard before adverse observation came to be recorded in the impugned order. The writ petition is disposed of.

Summary

Issues involved: Determination of permission for prosecution independent of adjudication proceedings, pre-judging of issues in adjudication order, administrative satisfaction u/s 134 of CGST Act, 2017, absence of petitioner in adjudication proceedings.

In the judgment, the petitioner argued that being not a noticee in the adjudication proceedings, the power to grant permission for prosecution should be independent of such proceedings. It was emphasized that the Commissioner must apply his mind independently for granting such permission, separate from the adjudication process. The petitioner contended that the observations in the adjudication order, holding the petitioner guilty, amounted to pre-judging the issue without giving the petitioner a chance to be heard.

The counsel for the revenue clarified that no prosecution had been initiated against the petitioner at the time. The court, after hearing both parties and examining the records, concluded that keeping the petition pending or calling for a counter affidavit would serve no useful purpose at that stage. The court highlighted that the administrative satisfaction required u/s 134 of the CGST Act, 2017 should be determined by the Commissioner, not influenced by findings in adjudication proceedings.

It was noted that the Additional Commissioner who issued the adjudication order was not the Commissioner, and the petitioner was not part of the adjudication proceedings nor given an opportunity to present their case before adverse observations were made. The judgment emphasized that any prosecution should only arise after an independent assessment by the Commissioner, considering all facts and circumstances without being influenced by the observations in the impugned order. Consequently, the writ petition was disposed of with these observations.