2024 (8) TMI 1094 - HC - GST

Challenge to adjudication order passed u/s 73(9) of the CGST/WBGST Act, 2017 - no opportunity of hearing was either afforded or granted to the petitioners - violation of circular no. CBIC 183/15/2022 GST dated 27th December, 2022 - violation of principles of natural justice - HELD THAT - The petitioners in this case complain that their response to the show cause was not considered. It is noticed in the order passed u/s 73 of the said Act, the proper officer had categorically noted that the response filed by the petitioners along with the documents has been taken into consideration. In view thereof, it cannot be said that the petitioners response was not considered or the proper officer had glossed over the same while passing the order impugned. The sufficiency or otherwise of the response, and the appreciation thereof by the proper officer, cannot form the subject matter of consideration in a writ petition under Article 226 of the Constitution of India. Although, the petitioners complain of violation of statutory provisions of not being afforded with an opportunity of hearing, it is found that such issue has been raised as and by way of an afterthought. The order impugned had been passed on 31st October, 2023. The petitioners chose not to file an appeal within the prescribed period of limitation - since, the petitioners have not taken steps to challenge the same with the time prescribed and also having not approached this Court expeditiously, this Court ought not to extend any relief in favour of the petitioners especially when the petitioners have an alternative remedy in the form of an appeal although, the time to prefer an appeal has long expired. Subject to payment of costs of Rs.10,000/- to be paid by the petitioners to the respondents, leave is granted to the petitioner no.1 to prefer an appeal from the order dated 31st October, 2023, before the appellate authority provided such appeal is filed within two weeks from date - Petition disposed off.

Summary

Issues:
Challenge to adjudication order under Section 73(9) of the CGST/WBGST Act, 2017
Alleged lack of opportunity of hearing and violation of circular no. CBIC 183/15/2022 GST
Consideration of response to show cause
Delay in filing an appeal and seeking relief through a writ petition
Granting leave to file an appeal before the appellate authority

Analysis:
The writ petition challenged an adjudication order under Section 73(9) of the CGST/WBGST Act, 2017, alleging lack of opportunity of hearing and violation of circular no. CBIC 183/15/2022 GST. The petitioners contended that their response to the show cause was not considered, but the court noted that the proper officer had acknowledged and considered their response, stating it cannot be a subject of consideration in a writ petition under Article 226 of the Constitution of India.

The petitioners also raised the issue of not being afforded an opportunity of hearing, which the court deemed as an afterthought since the order was passed on 31st October, 2023, and no appeal was filed within the prescribed period. The court emphasized that the petitioners had not taken timely steps to challenge the order and had an alternative remedy through an appeal, which they failed to utilize. Therefore, the court declined to interfere, considering the delay and lack of explanation for not filing an appeal promptly.

The advocate for the petitioners requested leave to file an appeal, stating the petitioners were wrongly advised previously. The court granted leave to the first petitioner to file an appeal within two weeks from the date of the judgment, subject to payment of costs of Rs.10,000 to the respondents. The court directed the appellate authority to hear and dispose of the appeal on merits, provided the petitioners comply with other formalities.

In conclusion, the writ petition was disposed of with the above observations and directions, with no order as to costs. The court emphasized the importance of timely action and utilizing available legal remedies, granting an opportunity for the petitioners to file an appeal before the appellate authority.