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2021 (11) TMI 153 - TELANGANA HIGH COURTMaintainability of the writ petition - Refund of excess amount lying to the credit of electronic cash ledger of the petitioner - applicability of proviso to sub-section (1) of Section 54 or sub-section (1) of Section 54 - HELD THAT:- Once it is held that the amount collected by ECO and paid to the Government under Section 52(3) of the CGST Act is tax to which the supplier is entitled to take credit in his electronic cash ledger under subsection (7) of Section 52, the provisions of Section 54 of CGST Act would apply for claiming refund of the same. The balance amount in the electronic cash ledger till it is appropriated by making payment towards discharge of liability of tax, interest or any other amount to the Government, would be the amount available to the ‘registered person’ in whose name the said electronic cash ledger is maintained. Therefore, the stand of the respondents that since the amount collected by ECO under Section 52 of the CGST Act is not paid by the petitioner by himself and therefore, it is not entitled to claim refund of the same, is totally misplaced. As the petitioner is claiming refund balance in electronic cash ledger, it is covered by the proviso to sub-section (1) of Section 54 and would not fall under sub-section (1) of Section 54. Maintainability of the writ petition - HELD THAT:- Though an effective remedy of appeal to the Appellate Tribunal is provided under Section 109 of the CGST Act, it is an admitted fact that the said Tribunal has not yet been constituted, though more than 3 years have elapsed after the CGST Act has been introduced. Thus, the petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it is entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India. Further, mere existence of alternative remedy is no bar for invoking the jurisdiction under Article 226 of the Constitution of India, when right to carry on business is being impeded, resulting in violation of fundamental right as guaranteed under Article 19(1)(g) of the Constitution of India. The impugned Order-in-Appeal passed by the 4th respondent, cannot be held to be a validly passed order for it to be sustained - Petition allowed.
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