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2022 (12) TMI 362 - HC - GSTMaintainability of petition - availability of alternate remedy - remedy of approaching the Tribunal under Section 112 of the Act of 2017 - HELD THAT - It is an admitted position that the Tribunal is not constituted as of today. We are not informed whether the order passed by the Telangana High Court has been challenged by the Union of India higher nor we are shown any view taken by any Court that even though the Tribunal is not made functional, no Writ Petition should be entertained. The learned Counsel for the Respondents, who is representing the Union of India, is unable to inform us what is the remedy for the Petitioner. The Advocate for the Respondents has sought to contend that though there is no Tribunal, nor it can be committed when it will be set up in near future, the position that the Petitioner is remedy-less, is appropriate. Therefore, it is necessary for us to know whether the Union of India has given such instructions to the Advocate. The Central Board of Indirect Taxes and Customs will file an affidavit in this Petition as to whether the stand taken by the Advocate for the Respondents and pressed seriously in the argument that the position that the Petitioner is remedy-less till the tribunal is made functional, is appropriate, is on the instructions of the Respondent Union of India and as to whether the judgment and order passed by the Telangana High Court in the case of M/s. Appario Retail Pvt. Ltd. 2021 (11) TMI 153 - TELANGANA HIGH COURT is challenged. Stand over 23 January 2023. The affidavit to be filed before the next date. To be heard along with Writ Petition No. 10883 of 2019 where the notice is issued to the Central Board of Indirect Taxes and Customs on similar issue.
Issues:
Challenge to order rejecting refund claim under CGST Act, jurisdiction under Article 226 of the Constitution of India, maintainability of writ petition without functional Tribunal, remedy for petitioner's refund claim. Analysis: 1. Challenge to Order Rejecting Refund Claim: The petitioner challenged the order rejecting their refund claim under the CGST Act. The order was passed by the Assistant Commissioner, CGST, and later dismissed by the Commissioner, CGST and Central Excise (Appeals) in Mumbai. The petitioner sought relief through a writ petition under Article 226 of the Constitution of India. 2. Jurisdiction under Article 226: The respondents contended that the writ petition should not be entertained as the remedy of approaching the Tribunal under Section 109 of the CGST Act was available. The Principal Commissioner of CGST and Central Excise, Mumbai, emphasized the availability of the statutory appeal process. The respondents argued that the High Court should not hear the petition on its merits due to the existence of an alternative remedy. 3. Maintainability of Writ Petition without Functional Tribunal: The issue of the maintainability of the writ petition without a functional Tribunal was raised. The petitioner's counsel cited a judgment from the Telangana High Court where it was observed that the petitioner cannot be compelled to wait indefinitely for the Tribunal to be constituted to seek a refund. The judgment highlighted that the mere existence of an alternative remedy does not bar invoking the jurisdiction under Article 226 of the Constitution of India. 4. Remedy for Petitioner's Refund Claim: The Union of India, represented by the respondents' counsel, was unable to provide clarity on the remedy available to the petitioner in the absence of a functional Tribunal. The Central Board of Indirect Taxes and Customs was directed to file an affidavit clarifying whether the position that the petitioner is remedy-less until the Tribunal is functional was based on instructions from the Union of India. The matter was adjourned for further proceedings. In conclusion, the judgment addressed the challenges faced by the petitioner in seeking a refund under the CGST Act, the jurisdiction of the High Court under Article 226, the implications of not having a functional Tribunal for seeking redressal, and the uncertainty regarding the remedy available to the petitioner. The Court directed the filing of an affidavit to clarify the stand taken by the respondents and scheduled further proceedings to address the issues raised in the petition.
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