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2020 (12) TMI 742 - HC - GSTMaintainability of appeal - detention of goods on account of wrong mentioning of the place in the E-Way bill - non-constitution of Tribunal - Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 - HELD THAT - We fail to understand that why the Tribunal has not been constituted till date although the CGST Act was enacted in the year 2017 and the afore-quoted Removal of Difficulties Order was issued on 03.12.2019. Years have passed but the situation has not changed so far. Prima facie, there is failure on the part of the Government to discharge its statutory function by not constituting the Tribunal and thus denying remedy to dealers. Consequently, they are approaching directly to the High Court under Article 226 of the Constitution of India. Notice on behalf of newly impleaded respondent Nos.5 and 6 have been accepted today in court by Sri Krishna Agarwal, learned Central Government Standing Counsel on behalf of ASGI. We request learned ASGI to assist the court in this matter. Put up in the additional cause list on 18.01.2021 for further hearing, along with Writ Tax No.655 of 2018 and connected matters involving question regarding non-constitution of the Tribunal.
Issues:
1. Detention and seizure of goods under Section 129(1) of the IGST Act, 2017. 2. Appeal rejection by the Appellate Authority. 3. Failure of the Appellate Authority to record reasons for not accepting the petitioner's explanation. 4. Extension of the period of limitation for filing a second appeal before the Tribunal under the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. 5. Delay in constituting the Tribunal under the CGST Act, 2017, leading to the denial of remedy to dealers. Analysis: 1. The petitioner's goods were detained and seized under Section 129(1) of the IGST Act, 2017, and a notice under Section 129(3) of the CGST Act was issued. The petitioner deposited the demanded amount but filed an appeal against the order. The Appellate Authority rejected the appeal, leading to the petitioner filing a writ petition challenging the decision. 2. The Appellate Authority failed to provide any material basis for not accepting the petitioner's explanation for the discrepancy in the E-Way bill. The Authority did not establish any intent to evade tax, raising concerns about the proper discharge of its statutory duties. 3. The Central Government issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, extending the period of limitation for filing a second appeal before the Tribunal. However, the Tribunal has not been constituted despite the enactment of the CGST Act in 2017, creating a situation where dealers are denied a legal remedy. 4. The delay in constituting the Tribunal has led to dealers approaching the High Court under Article 226 of the Constitution of India for relief. The Court has requested the assistance of legal counsel to address the issue of non-constitution of the Tribunal, highlighting the failure of the Government to fulfill its statutory function. 5. The Court has directed the respondents to file a counter affidavit within three weeks and allowed the petitioner to file a rejoinder affidavit thereafter. The case is scheduled for further hearing, emphasizing the importance of addressing the delay in constituting the Tribunal and ensuring timely access to legal remedies for taxpayers.
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