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TMI Blog2023 (12) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions of sub-section (7) of Section 107 of the CGST Act, in filing the appeal. In other words, the Petitioner is ready and willing to make the payment/deposit of the tax as per clauses (a) and (b) of sub-section (6) of section 107 of the CGST Act. However, the question raised by the Petitioner is that for fulfilment of such condition, the amount of tax, which is voluntarily deposited by the Petitioner, under protest under sub-section (5) of section 73 of the CGST Act, by permitted to be reckoned for the purposes of a pre-deposit for compliance of sub-section (6) of section 107 of the CGST Act. In our opinion, such request for the Petitioner is not something, which is opposed to law, inasmuch as, on a holistic reading of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner : Mr. Brijesh Pathak. For the Respondent (State) : Ms. Shruti D. Vyas, Addl. G.P. a/w. Ms. P. N. Diwan, AGP. P.C. 1. By this petition under Article 226 of the Constitution of India, the Petitioner has prayed for various relief, however at the time of the hearing the Petitioner has pressed prayer clause (b) which reads thus:- (b) Issue a writ in the nature of certiorari or any other appropriate writ or order thereby quashing the impugned Order dated 19.04.2022, Exhibit A, issued by the Respondent No. 3 along with consequential reliefs; 2. The Petitioner has thereafter also filed an interim application praying for the following relief:- a. direct the Respondents and their subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s listed the interim application praying for a direction to the Respondents to consider the deposit of Rs. 1 Crore as sufficient compliance of Section 107(6) of the CGST/MGST Act and for a further direction to accept the appeal filed by the Applicant/Petitioner. 6. The Petitioner submits that the sum of Rs. 1 Crore was paid under protest without their being any demand on the day when the deposit was so made. The Petitioner submits that the Respondents are not justified in retaining the same and further demanding a sum equal to 10% as pre-deposit for filing an appeal without adjusting the said deposit. The Petitioner has placed reliance on the decision of this Bench in the case of Vinod Metal Vs. State of Maharashtra (2023) 9 Centax 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no demand against the Petitioner, therefore, the retention of the said amount by the Respondents is without authority of law inasmuch as the Respondents can retain only that amount which is against the demand raised and admittedly on the date of the deposit, there was no such demand. Subsequently, an Order in Original was passed on 29th August 2022 and a demand was raised by the Respondents. The Petitioner has challenged the said order by filing an appeal and requested the Appellate-Authority to adjust the said sum of Rs. 1 Crore as compliance under Section 107(6) of the CGST/MGST Act. 10. In our view, the prayer made for adjustment as pre-deposit for maintainability of appeal by the Petitioner is justified and same is squarely cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l requirement cannot defeat the availability of a remedy of an appeal, made available to the assessee under a substantive statutory provision nor can such remedy be rendered illusory. The interpretation of the provisions need to be made to recognise the intention of the legislature, which is to aid access to justice, which itself is a fundamental right guaranteed under the Constitution. When it comes to right of an appeal, as guaranteed by a statutory provision, such right needs to be made effective and meaningful. It cannot be frustrated by shackles of complex procedural formalities. 9. In the present case, the Petitioner is in no manner disputing that the Petitioner is required to comply with the provisions of sub-section (7) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable considering that the provisions of the CGST Act on pre-deposit are not too different from the provisions of the MVAT act, which fell for consideration of the Supreme Court. 11. Insofar as the prayer in regard to the blocking of input tax credit is concerned, the Respondents have stated that they have not blocked the input tax credit and, therefore, the issue does not arise for our consideration in the light of the said statement made by the Respondents. In any view of the matter, the input tax credit is contended to have been blocked on 19th April 2022 and the period of one year expires on 19th April 2023, hence, by operation of law as per Section 83(2) of the CGST/MGST Act, the said attachment ceases to exists. 12. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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