Home Case Index All Cases GST GST + HC GST - 2019 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (12) TMI 1267 - HC - GSTMaintainability of petition - alternate remedy of appeal - refund claim - detention of goods alongwith vehicle - e-way bill - It is the appellant-writ petitioner’s case that it is the Corporation which, instead of raising two separate e-way bills for two separate consignments, had raised one e-way bill for the total amount on both the consignments - HELD THAT:- Sub-Sections (1), (6) and (7) of Section 107 of the CGST Act, it is evident that, while an appeal can be filed against any order or decision of an adjudicating authority, the pre- condition, for such an appeal to be filed, is payment of the demanded tax or penalty and 10% of the disputed amount. In the present case, there is no dispute regarding tax and it is the appellant-writ petitioner’s case that the tax in its entirety has been paid to the Corporation which, in turn, is obligated to remit the said amount to the State Tax Department. Since the appellant-writ petitioner disputes levy of penalty in its entirety, they would, in terms of Section 107(6) of the CGST Act, only be required to deposit 10% of such penalty and as a result, in terms of Sub-Section (7) of Section 107 of the CGST Act, the remaining penalty need not be paid. That does not, however, solve the problem which the appellant-writ petitioner faces i.e. for release of the goods detained by the respondent-authorities. If, on the other hand, he were to comply with the demand notice issued under Section 129(1) of the CGST Act then, in terms of Section 129(5) of the CGST Act, on payment of the amount referred to in Sub-Section (1), all proceedings in respect of the notice specified in Sub-Section (3) shall be deemed to be concluded, in which event the goods would be released. In the facts and circumstances of the present case, to modify the order of the learned Single Judge and, instead, direct the appellant-writ petitioner to deposit the entire amount of penalty i.e. for a sum of ₹ 1,70,688/- with the concerned authorities, and furnish proof of deposit of the said amount along with the Appeal to be preferred under Section 107(1) of the CGST Act - On such deposit, and on an Appeal being preferred thereafter within the period of limitation prescribed under Section 107(1) of the CGST Act, the Appeal shall be entertained by the Appellate Authority, and shall be adjudicated on its merits. As soon as an Appeal is preferred by the appellant-writ petitioner, enclosing thereto proof of payment of total penalty amount of ₹ 1,70,688/-, the subject goods shall be released in their favour. It is made clear that, in case the Appeal is decided in the appellant-writ petitioner’s favour, they shall then be entitled for refund of the amount deposited by them pursuant to the order - appeal disposed off.
|