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TMI Blog2024 (1) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... her period of 1 month within the aforesaid period of 3 months or 6 months as the case may be. The petitioner is taking specific stand that there is no nexus of imposing GST liability with regard to Cess. This is a legal issue which can very well be examined and determined by the appellate authority, as such the submission made by the learned counsel for the petitioner that the appellate authority is bound with the circular is not applicable in the present facts in view of specific stand taken by the petitioner in the reply submitted by them before the adjudicating authority. Hon'ble Supreme Court in case of The State of Madhya Pradesh and Another vs M/s Commercial Engineers and Body Building Company Ltd {Civil Appeal No. 7170 of 2022 dated 14.10.2022} [ 2022 (10) TMI 576 - SUPREME COURT] has considered the alternate remedy of filing of appeal under the M.P. Value Added Tax, 2002 and has held 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Cement Plant of the Petitioner company is situated at Post Hirmi, Tehsil, Simga, District Baloda Bazar, Bhatapara (Chhattisgarh) and is engaged in the manufacture and supply of Cement and Clinker. The Petitioner has its own Limestone (Cement Grade) Mines for captive use in the manufacture of cement situated at Paraswani, Baloda Bazar, Chhatisgarh. The Petitioner company has been granted mining leases (in short ML ) for extraction of mineral Limestone (Cement Grade) Major Mineral and also Notified mineral under Mines Minerals (Development Regulation) Act, 1957, as amended from time to time ( MMDR Act )]. This mining lease has provided for all the payments that are required to be made to the State Government in relation to the aforesaid captive mining operation royalty, surface rent, dead rent, water charges. Therefore, against the receipt of mining rights, Petitioner pays a royalty to the State Government under Section 9 (2) of the MMDR Act. Additionally, in terms of Section 9B and 9C of the MMDR Act, the Petitioner also pays charges towards the District Mineral Foundation ('DMF') and National Mineral Exploration Trust ('NMET'), respectively. 3. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 2022 from the Learned Deputy Commissioner (Prev.), office of the Principal Commissioner CGST Central Excise, Raipur, Chhattisgarh ('Ld. Deputy Commissioner') stating that GST amounting to Rs. 14,35,54,944/- is payable by the Petitioner under reverse charge basis on Infrastructure Development Cess and Environment Cess. In response to this letter dated 10th February 2022, the Petitioner made a detailed submission by its letter dated 28th February 2022 denying tax liability. The respondent issued form GST DRC-01A dated 21st November 2022 to the Petitioner intimating him about the tax payable under Section 73(5) of the GST Act alleging that the Petitioner had not paid GST under Reverse Charge basis on the Infrastructure Development Cess and Environment Cess for the period of July 2017 to September 2021 at the rate of 18% along with the applicable interest. Thereafter, the Petitioner was served with a Show Cause Notice dated 30 December 2022 issued by the Superintendent (Preventive) alleging that the petitioner has not paid tax under Reverse Charge mechanism for mining and exploration right granted to the petitioner. It has also been alleged that the petitioner has paid Chh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, Madhya Pradesh and Another reported in 1986(2) SCC 103 wherein Hon ble Supreme Court has held in paragraph 11 as under:- 11. We are of opinion that the High Court should have examined the merits of the case instead of dismissing the Writ Petition in limine in the manner it has done. The order passed by the Commissioner of Sales Tax was clearly binding of the assessing authority under Section 42B(2) and although technically it would have been open to the appellants to urge their contentions before the appellate authority namely, the Appellate Assistant Commissioner, that would be a mere exercise in futility when a superior officer namely, the Commissioner, has already passed a well-considered order in the exercise of his statutory jurisdiction under sub-section (1) of Section 42-B of the Act holding that 21 varieties of the compressed woollen felt manufactured by the appellants are not eligible for exemption under Entry 6 of Schedule I of the Act. Further Section 38(3) of the Act requires that a substantial portion of the tax has to be deposited before an appeal or revision can be filed. In such circumstances we consider that the High Court ought to have considered and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits of the challenge cannot be sustained even if the High Court were to rely on Titaghur Paper Mills Co. Ltd. (supra) to support such order. 9. He would submit that since the appellate authority is bound by the circulars of the department, as such, even if the remedy of appeal is provided under the Statute the writ petition is maintainable before this Court. He would further submit that in case of Godrej (surpa) the Hon ble Supreme Court while deciding the issue of alternate remedy has held that where the controversy is purely legal one and it does not involve disputed questions of facts but only question of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of alternate remedy being available. 10. I have heard learned counsel for the parties and perused the record. 11. From the above submission made by the parties the point to be determined by this Court is whether the writ petition in view of alternate efficacious remedy of appeal under Section 107 of the GST Act is maintainable or not? 12. For better understanding the point raised in the petition it is expedient for this Court to extract Section 107 of the GST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute arising from the said order, in relation to which the appeal has been filed. (7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed. (8) The Appellate Authority shall give an opportunity to the appellant of being heard. (9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subclause of 4 also provides further period of 1 month within the aforesaid period of 3 months or 6 months as the case may be. 14. The submission made by the learned counsel that the department is bound with the Circular issued by the department as per the Section 168 (1) of the GST Act, as such it is simple formality and deserves to be rejected otherwise the provisions of filing appeal as provided under the GST Act will be redundant. The judgment cited by the petitioner in case of M/s Filterco (supra) is distinguishable on the facts as in that case the Commissioner of Sales Tax while exercising its power under Section 42-B of the Sales Tax which provides Commissioner s power to determination of disputed questions and the Section 42-B(2) provides that any order passed by the Commissioner under Subsection 1 shall be binding on the authorities referred to it in Section 3 in all proceedings under the Act except appeals. Whereas the petitioner is taking specific stand that there is no nexus of imposing GST liability with regard to Cess. This is a legal issue which can very well be examined and determined by the appellate authority, as such the submission made by the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and order. 16. The Hon ble Supreme Court in case of Assistant Commissioner and others vs. Commercial Steel Limited {(2021) SCC online SC 884} wherein the provisions of Section 107 of the GST Act has come up for consideration, has held in paragraph 11 to 13 as under:- 11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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