2024 (9) TMI 673 - HC - GST

Wrongful availment / passing on of input tax credit - rong availment of IGST refund under Advance Authorisation scheme - constitutional valisity of Notification No. 09/2023-Central Tax dated 31.03.2023 - ultra- vires the provisions of the CGST Act or not - HELD THAT - It is found that the order challenged before this Court is essentially the order dated 21.02.2024 and challenge thereto is on merits. Since, the provision is available for filing of appeal before the Appellate Authority in terms of Section 107 of the CGST Act, it is not fit to examine the same with respect to jurisdiction of the impugned order, as the appellate authority would be examining all the questions including questions of facts as well as question of law at the first stage. The present petition with regard to the orders under challenge not entertained - So far as the question regarding initiation of proceedings under Section 74 of the CGST Act instead of Section 73 of the CGST Act is concerned, it is opined that while examining the questions of facts, the questions of law can also be examined by the Appellate Authority, who can give finding in this regard. The issue relating to challenge of notification dated 31.03.2023 does not arise in the present case, as notice has not been issued to the petitioner under Section 73 of the CGST Act. The order passed elates to a case where proceedings were undertaken under Section 73 and not like the present and therefore distinguishable. The present petition is misconceived. The same is accordingly dismissed.

Summary

Issues:
1. Jurisdiction of the impugned order under Section 74 of the CGST Act instead of Section 73
2. Validity of the notification extending the limitation of issuing the notice under Section 73 of the CGST Act
3. Challenge to the Order-in-Original dated 21.02.2024

Analysis:

1. The petitioner sought to quash the Order-in-Original dated 21.02.2024 concerning the issues of "wrong availment/passing on of input tax credit" and "wrong availment of IGST refund under Advance Authorisation scheme." The petitioner also challenged Notification No. 09/2023-Central Tax as ultra vires. The petitioner argued that the notice should have been issued under Section 73 of the CGST Act, not Section 74, rendering the impugned order jurisdictionally flawed.

2. The petitioner contended that the extension of the limitation for issuing notices under Section 73 of the CGST Act, as per the notification dated 31.03.2023, was invalid. The petitioner highlighted that similar issues were pending in other cases before the Court, with interim orders already in place. The petitioner requested the present case to be heard alongside those cases to ensure consistency in decisions.

3. The Court noted that the impugned order was essentially a challenge to the Order dated 21.02.2024. The Court emphasized that the appellate authority, under Section 107 of the CGST Act, was the appropriate forum to address questions of jurisdiction, facts, and law. The Court declined to entertain the petition regarding the orders under challenge, stating that the Appellate Authority would comprehensively examine all relevant aspects, including questions of law and fact. The Court dismissed the petition, granting the petitioner the liberty to appeal before the appellate authority if desired.