2023 (12) TMI 833 - HC - GST

Maintainability of petition - impugned order is an appealable order or not - present petition is filed to avoid the payment of pre-deposit - availability of alternative remedy of appeal - HELD THAT - Admittedly there is no rejection in writing to the request made by the Petitioner vide letter dated 26th June 2023 seeking 30 days time for making submissions and for personal hearing. The impugned order came to be passed within two weeks from the date of application for adjournment without the Respondents replying to the request for adjournment of the Petitioner - the Respondents ought to have replied to the adjournment request in writing before proceedings to pass the impugned order. The Respondents ought to have also complied with the provisions of Section 75(4) which provides that an opportunity of a hearing shall be granted, when a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person. Since, in the instant case, there has been a violation of principles of natural justice and the mandatory provision of Section 75(4) of the CGST Act, the Court is inclined to entertain the present petition under Article 226 of the Constitution of India and quash the impugned order dated 21st July 2023. The Order-in-Original is quashed and set aside - Respondents to pass a speaking order after considering the written and oral submissions of the Petitioner on or before 28th February 2024.

Summary

Issues involved:
The petition filed under Article 226 of the Constitution of India seeks to quash an adjudication and an order issued by Respondent No. 1. The Petitioner, engaged in trading pharmaceutical products, received a show cause notice but did not comply. An Order-in-Original was passed, raising a demand and imposing a penalty, which the Petitioner challenges on the grounds of violation of natural justice and Section 75(4) of the CGST Act.

Details of the judgment:

Violation of natural justice and Section 75(4) of the CGST Act:
The Petitioner requested 30 days for submission and a personal hearing, but the Respondents did not respond to this request in writing before passing the impugned order. The Respondents failed to comply with Section 75(4), which mandates granting a hearing upon a written request from the person chargeable with tax or penalty. Due to the violation of natural justice and Section 75(4), the Court entertained the petition under Article 226 and quashed the impugned order dated 21st July 2023.

Order of the Court:
The Court quashed and set aside the Order-in-Original dated 21st July 2023. The Petitioner was directed to file written submissions with the Respondents by 18th January 2024 and appear for a personal hearing on 25th January 2024. The Respondents were instructed to pass a speaking order after considering the written and oral submissions by 28th February 2024. The schedule provided was not to be modified, and all contentions of the parties were kept open. No costs were awarded in the matter.