2024 (8) TMI 1193 - HC - GST

Review petition under Order XLVII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 - Refusal of refund of ITC - application for review of the order filed mainly on the ground of mistake or error apparent on the face of the record for want of consideration of facts and judgments placed on record - HELD THAT - The review-petitioner has never disputed that the order impugned in the writ petition dated 31.10.2023 passed by Addl. Commissioner of State Tax(Appeal), Balasore under Annexure-9 is an appealable one before GST, Tribunal, but admittedly such GST, Tribunal has not been made functional and, thereby, this Court in M/S. Maa Tarini Traders (supra) has provided protection by way of granting stay of recovery of disputed amount subject to deposit of 20% of the remaining tax amount in dispute, besides, providing protection for filing of appeal, once the GST, Tribunal is constituted and made functional. The petitioner cannot claim any prejudice in the matter, since the order sought to be reviewed has been passed by this Court on the consent of the parties which is clearly reflected from the sentence It is agreed by the parties , in the very first line of the order passed in the writ. Reliance placed upon the decision of Bombay High Court in Principal Global Services Pvt. Ltd. v. The State of Maharashtra and others 2023 (4) TMI 69 - BOMBAY HIGH COURT in support of his contention for review of the impugned order, but although the petitioner claims for review of the order on the ground of mistake or error apparent on the face of record, however, the decision relied on by the petitioner reveals about review of order for some typographical error as revealed in paragraph-7 of the relied on decision. On a careful scrutiny of the entire averments of the review petition together with the admitted facts of the case, this Court does not find any ground as permissible under law to review the impugned order. Consequently, no ground for review of the impugned order having made out by the petitioner, the present review petition lacks merit and is liable to be dismissed. The review petition being devoid of merit stands dismissed on contest, but in the circumstance, no order as to costs.

Summary

Issues:
Review petition under Order XLVII Rule 1 of CPC for refusal of refund on Input Tax Credit (ITC) due to violation of natural justice.

Analysis:
1. The review petition sought to challenge the order refusing refund of accumulated ITC on exports due to the alleged violation of natural justice. The petitioner contended that the appellate authority erred in dismissing the appeal without providing a proper opportunity of hearing. The petitioner argued that the issue in this case was distinct from a previous case, emphasizing the lack of a fair hearing and the rejection of the refund application. The petitioner urged for a review of the order based on the grounds of error apparent on the face of the record.

2. The Revenue opposed the review petition, asserting that the issue was identical to a prior case and that the order had granted the petitioner the right to appeal once the GST Tribunal was functional. The Revenue contended that the order was not reviewable as the essential grounds for review were not met. The Revenue urged the court to dismiss the review petition.

3. The court examined the grounds for review under CPC, emphasizing the need for the party seeking review to establish specific grounds such as discovery of new evidence, error on the face of the record, or other sufficient reasons. The court noted that the petitioner primarily relied on the alleged error in not considering facts and judgments during the initial order. The court highlighted that the order was passed with the parties' consent, as indicated in the record, and found no error apparent on the face of the record to warrant a review.

4. The court referenced a prior case, M/s. Maa Tarini Traders, where directions were issued regarding the deposit of a sum for stay benefits pending appeal before the GST Tribunal. The court noted that the petitioner did not dispute the appealable nature of the order but argued for a review based on alleged mistakes. However, the court found no grounds for review based on the petitioner's contentions and cited a Bombay High Court decision regarding typographical errors in support of its decision.

5. After a thorough analysis of the petition, the court concluded that no permissible grounds for review were established. Consequently, the court dismissed the review petition for lacking merit, with no costs imposed on either party.