2023 (10) TMI 1290 - HC - GST

Maintainability of petition - appealable forum not available - non availability of alternative remedy - HELD THAT - The matter shall appear for final hearing in the monthly list of December, 2023. Statute requires that for filing appeal before the first appellate authority against the order in original petitioner is to make pre-deposit of 10% of the tax and in case petitioner wants to challenge the order of the first appellate authority before the Tribunal, petitioner/assessee will have to make a pre-deposit of additional 20% of the remaining disputed tax. But, in this case, petitioner submits that the respondent authority has recovered more than the aforesaid amount which are required to be paid by pre-deposit before the first appellate authority and the second appellate authority and recovered even before the expiry of the statutory period of time to file appeal before the Tribunal. Considering the facts and circumstances of the case, respondent authority concerned is directed to refund the excess amount of pre-deposit within two weeks from the date of communication of this order, subject to compliance of any other formalities which are required under the law.

Summary

Issues involved:
The issues involved in the judgment are the challenge to an order of the first appellate authority under the WBGST Act, the requirement of pre-deposit for filing appeals, and the excess amount recovered by the respondent authority.

Challenge to the order of the first appellate authority:
The petitioner challenged the impugned order of the first appellate authority under the WBGST Act. While the order is further appellable before the Tribunal, the said forum is currently unavailable, leaving the petitioner with no alternative remedy. The court decided to entertain the writ petition and scheduled it for a final hearing after the exchange of affidavits.

Requirement of pre-deposit for filing appeals:
According to the statute, for filing an appeal before the first appellate authority against the original order, the petitioner is required to make a pre-deposit of 10% of the tax. Additionally, if the petitioner wishes to challenge the first appellate authority's order before the Tribunal, an additional 20% pre-deposit of the remaining disputed tax is necessary. However, in this case, the petitioner argued that the respondent authority had already recovered an amount exceeding the required pre-deposit before the statutory period to file an appeal before the Tribunal had expired.

Excess amount recovered by the respondent authority:
The respondent authority had indeed recovered more than the amount mandated for pre-deposit by the statute for appeals before the first appellate authority and the Tribunal. The learned Additional Government Pleader acknowledged this fact. In light of the circumstances, the respondent authority was directed to refund the excess amount of pre-deposit to the petitioner within two weeks from the date of communication of the court's order, subject to any other necessary formalities as required by law.