9911796707
TMI Blog2024 (1) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... n Crore Thirty-Five Lakh Fifty-Four Thousand Nine Hundred and Forty-Four only) along with applicable interest and penalty on the Development Cess and Environment Cess to be paid under the Chhattisgarh (Adhosanrachna Vikas evam Paryavaran) Upkar Adhiniyam, 2005. The Additional Commissioner has also imposed penalty to the tune of Rs. 1,43,55,494/-. The petitioner has also challenged the demand notice dated 06 December 2023 issued by Assistant Commissioner, Raipur - 3, Division -1 (Annexure P/2). in which levy and collect Goods & Services Tax ("GST") of Rs. 14,35,54,944/- (CGST Rs. 7,17,77,472/- + SGST Rs. 7,17,77,472/-) (Rupees Fourteen Crore Thirty-Five Lakh Fifty- Four Thousand Nine Hundred and Forty-Four only) along with applicable interest and penalty on the Development Cess and Environment Cess payable to the State of Chhattisgarh under the Chhattisgarh (Adhosanrachna Vikas evam Paryavaran) Upkar Adhiniyam, 2005. 2. Brief facts as projected by the petitioner are that the Petitioner is a Public Limited Company duly registered under the provisions of the Companies Act, 1956, having its Registered Office at BWing, 2nd floor, Ahura Center, Mahakali Caves Road, Andheri (E), Mumbai-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2021 stating that the rate of GST on Royalty would be 18% with retrospective effect from July 2017 to December 2018. In the aforesaid facts and circumstances, proceedings were initiated by the inspection carried out on the Petitioner under Section 67(1) of the CGST Act on 27 August 2021. In furtherance of the same, inquiry was made on the Petitioner by summons dated 27.08.2021 issued by the learned Superintendent, Office of the Principal Commissioner, CGST & Central Excise, Raipur, Chhattisgarh (Ld. Superintendent) under Section 70 of the CGST Act alleging evasion of CGST due to non-payment of GST on Infrastructure Development Cess and Environment Cess. 4. It has also been contended that to clarify the factual matrix the petitioner demanded certain documents and also filed an application for extension of time on 27.08.2021. The respondent issued summons dated 07 September 2021, 30 September 2021, and 26 October 2021 and put certain queries. The petitioner submitted reply on 08 October 2021 mentioning the details of the payment of Infrastructure Development Cess and Environment Cess during the period of July 2017 to September 2021. The Petitioner received a letter dated 10 Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessment order is bad-in-law as no supply or element of consideration exists to attract the provisions of GST, as such the impugned orders are illegal and deserve to be quashed by this Court. 6. Learned counsel for the Revenue would submit that the petitioner has alternate remedy of filing of appeal against the order of additional Commissioner as provided under Chapter XVIII of the GST Act, 2017 thus, the writ petition is not maintainable. 7. This was vehemently objected by the learned counsel for the petitioner. He would submit that the Revenue Authorities are bound by the Circular issued by the department as per Section 168 (1) of the GST Act. As such the decision taken by the appellate authority, if the petitioner is directed to file an appeal, will be prejudiced decision and it will be against the Principle of Natural Justice. He would further submit that if the petitioner is re-delegated to file an appeal it will be simple formality and no fruitful purpose will be achieved. To substantiate his submission the learned counsel for the petitioner has referred to the judgment of Hon'ble Supreme Court in case of M/s Filterco and Another vs Commissioner of Sales Tax, Madh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the same party, reported in (1983) 2 SCC 433 (Titaghur Paper Mills Co. Ltd. vs. State of Orissa). While upholding the impugned order of dismissal of the writ petition, where an order passed by the Sales Tax Officer was under challenge, this Court in Titaghur Paper Mills Co. Ltd. (supra) held that the challenge being confined to the regularity of proceedings before the Sales Tax Officer and there being no suggestion that the concerned officer had no jurisdiction to make an assessment, the decision in Mohd. Nooh (supra) was clearly distinguishable since in that case there was total lack of jurisdiction. This Court also held that under the scheme of the relevant Act, there was a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of and that since the authority of the concerned officer to make an assessment was not in question, recourse ought to be taken by initiating proceedings thereunder. As noted above, the very jurisdiction of the Revisional Authority having been questioned in the writ petition, the impugned order of the High Court dismissing the writ petition without examining the merits of the challenge canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner in his order. (3) Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month. (5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed. (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, in relation to which the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of such stay shall be excluded in computing the period of one year. (14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority. (15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf. (16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties. 13. From bare perusal of the Section it is quite vivid that the person aggrieved by any decision or order under this Act or the State GST Act or Union Territory Goods and Service Tax by an adjudicating authority may appeal to the Appellate Authority as may be prescribed within 3 months from the date on which the said decision or order is communicated to such person. The subclause of 4 also provides further period of 1 month within the aforesaid period of 3 months or 6 months as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the parties on the Input rebate claimed by the respondent - original writ petitioner, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The writ petition preferred by the respondent herein - original writ petitioner - assessee is hereby dismissed on the ground of alternative efficacious statutory remedy of appeal available to the respondent. The respondent is relegated to prefer an appeal before the appellate authority under Section 46(1) of the MP VAT Act, 2002. If such an appeal is preferred within a period of four weeks from today, the same be entertained and decided and disposed of on merits without raising an issue with respect to limitation, however, subject to compliance of the statutory requirements, if any, for preferring an appeal under Section 46(1) of the MP VAT Act, 2002. The appellate authority to decide and dispose of the appeal and the issue without in any way being influenced by any of the observations made by the High Court which as such is hereby quashed and set aside by the present judgment and order. 16. The Hon'ble Supreme Court in case of Assistant Commissioner and others vs. Commercial Steel Limited {(2021) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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