2018 (10) TMI 1188 - HC - GST

Court allows exclusion of time spent on writ petition, enabling distributor to pursue appeal against GST penalty.

The Court directed the petitioner, a distributor, to pursue a statutory appeal before the Appellate Authority against the penalty imposed under Section ... Request for withdrawal of petition - alternate remedy - petitioner concedes that in the face of an alternate remedy, the petitioner cannot persist with this writ petition - Held that:- The petitioner can approach the Appellate Authority by filing a statutory appeal against the Ext.P8. As the order was passed on 06.02.2018, indeed the appeal may face the problem of limitation - petition disposed off. Issues:Interception and detention of goods by the petitioner, imposition of penalty under Section 129 of the Central State Goods and Services Tax Act, 2017, availability of an alternate remedy of appeal, request for withdrawal of the writ petition to approach the Appellate Authority, condonation of delay for filing the appeal, consideration of limitation for filing the appeal, exclusion of time spent in pursuing the writ petition.Analysis:The petitioner, a distributor, faced interception and detention of goods which were later released under Section 129 of the Central State Goods and Services Tax Act, 2017. Subsequently, an adjudication by the State Tax Officer resulted in the imposition of a penalty through the Ext.P8 order, prompting the petitioner to file a writ petition challenging the decision.During the proceedings, the respondent argued that the petitioner had an available alternate remedy of filing an appeal, which the petitioner's counsel acknowledged. The petitioner's counsel, however, highlighted that the appellate mechanism was not fully functional at the time the Ext.P8 order was issued, but now it is operational.Acknowledging the availability of the alternate remedy, the petitioner's counsel sought the Court's permission to withdraw the writ petition and approach the Appellate Authority. The counsel requested the Court to condone any delay in filing the appeal, emphasizing the petitioner's genuine pursuit of justice through the writ petition.In response, the learned Government Pleader contended that the Appellate Authority was functioning when the Ext.P8 order was passed, suggesting that the petitioner could file an appeal, seek condonation of delay, and present its case before the Appellate Authority.After hearing both parties, the Court held that the petitioner should pursue the statutory appeal before the Appellate Authority against the Ext.P8 order. Considering the date of the order and the potential limitation issue for the appeal, the Court recognized the petitioner's genuine efforts in pursuing the matter when the appellate mechanism was not fully operational.To ensure justice, the Court ordered that if the petitioner files a statutory appeal, the Appellate Authority should exclude the time spent in pursuing the writ petition when considering the limitation period. Consequently, the writ petition was disposed of, allowing the petitioner to proceed with the appeal while addressing the limitation concerns and acknowledging the time spent on the writ petition.