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2023 (8) TMI 836 - HC - GSTValidity of determination of Tax / GST when the Confiscation of goods u/s 130 was set aside - no surviving jurisdiction to pass order inasmuch as, the adjudication proceedings arose from an earlier proceedings under Section 67 of UPGST Act - HELD THAT - While proceedings under Section 67 and Section 74 are distinct in scope and purpose, at the same time, the essential facts found non-existent in the proceedings under Section 67 would have a material bearing on proceedings under Section 74 of the Act drawn up on the same basis. In the present case, since the substratum of the charge in the proceedings under Section 74 of the Act stood wiped out in entirety, occasioned by the First Appellate order dated 25.5.2020 passed with reference to proceedings under Section 130 of the Act, there survived no jurisdictional fact as may have given rise to the adjudication proceedings, on the same facts. The impugned order dated 17.8.2021 passed by respondent no.2 and the impugned notices dated 9.4.2021 25.5.2021 issued by respondent no.2 are, hereby, set aside - petition allowed.
Issues involved:
The issues involved in this case include the imposition of tax, interest, and penalty under Section 74(9) of the U.P. GST Act, the enforcement of the rule of alternative remedy, the setting aside of an order dated 18.2.2019 under Section 130(2) of the Act by the First Appellate Authority, and the jurisdictional fact for initiating adjudication proceedings under Section 74. Imposition of Tax, Interest, and Penalty: The petition was filed against the order passed by the Joint Commissioner Circle imposing tax, interest, and penalty totaling to Rs. 28,33,67,301.80 under Section 74(9) of the U.P. GST Act. The petitioner contended that there was no surviving jurisdiction to pass that order as the earlier order dated 18.2.2019 under Section 130(2) of the Act, which led to the adjudication proceedings, was set aside by the First Appellate Authority. Enforcement of Rule of Alternative Remedy: Although the rule of alternative remedy may have been enforced against the petitioners, the court entertained the petition on the basis that there was no surviving jurisdiction to pass the order dated 17.8.2021, as the earlier order under Section 130(2) had been set aside by the First Appellate Authority. Setting Aside of Earlier Order by First Appellate Authority: The order dated 18.2.2019 passed under Section 130(2) was set aside in its entirety by the First Appellate Authority. It was noted that neither that order was challenged nor were any new facts discovered that may have led to fresh proceedings being drawn up for adjudication. Jurisdictional Fact for Initiating Adjudication Proceedings: It was observed that the essential facts found non-existent in the earlier proceedings had a material bearing on the adjudication proceedings under Section 74. Since the substratum of the charge in the proceedings under Section 74 stood wiped out by the First Appellate order, there was no jurisdictional fact to initiate the adjudication proceedings. Conclusion: The writ petition was allowed, and the impugned order passed by respondent no.2 along with the impugned notices were set aside. The court did not pass any order as to costs, despite the possibility of imposing costs as pursued by the learned Standing Counsel.
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