TaxTMI 
TaxTMI 
2025 (4) TMI 232
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....oods and vehicle without any condition. 2. Shorn of unnecessary details, facts in brief, germane, are as follows: The petitioner is said to be the owner of certain goods - Arecanut, in the case at hand, which were to be supplied to one Pooja enterprises and it being transported, in a vehicle bearing registration No. KA-63, 3260. It is the case of the petitioner that prior to the movement of the goods as aforesaid, the petitioner has generated an invoice and handed over to the driver of the said vehicle but the e-way bill could not be generated due to network issues. The consignment and vehicle were intercepted by the fourth respondent - Commercial Tax Officer, (Enforcement -2), Vijayapura, an officer under the Karnataka Goods and Services Tax Act, 2017. The statement of the driver of the vehicle was recorded on 19.11.2024 and on the same day, an order for physical verification is passed by the fourth respondent, on the ground that the existence of the consignor and consignee, genuineness of the documents of the goods in transit, genuineness of the transactions within the consignor and consignee are suspicious, and would need further verification. 3. It is the claim o....
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....notification issued specifically authorizing the fourth respondent to be the proper officer. It is his submission that in the absence of such authorization, the act of the fourth respondent becomes without jurisdiction. It is his further submission that it is for the Government of India to notify such authorization in a manner known to law. Therefore, if the fourth respondent is not the proper officer as obtaining under Section 4 of the IGST, all his actions are non est in the eye of law. He would place reliance upon the judgment of the High Court of Madras rendered in the case of TVL. Vardhan Infrastructures vs. Head of the Gst, Council Secretariat Reported in (2024) 125 GSTR 334, with regard to cross empowerment. It is the further submission that the fourth respondent is only authorized or a proper officer under Section 6 of the CGST and KGST and not under Section 4 of the IGST. RESPONDENT - STATE: 7. Per contra, learned Additional Advocate General - Sri Gangadhar J.M., would vehemently refute the submissions to contend that there is no necessity to issue a notification under Section 4 of the IGST. The cross empowerment under Section 6 of the CGST and KGST would ipso facto ....
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.... officer of State tax or Union territory tax; (b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter. (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act shall not lie before an officer appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act." (Emphasis supplied) 12. Likewise, Section 6 of the KGST which also deals with an identical circumstance reads as follows: "6. Authorisation of officers of central tax as proper officer in certain circumstances.-(1) Without prejudice to the provisions of this Act, the officers appointed under the Central Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. (2) Subject to the conditions specified....
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....ST or KGST are authorised to be the proper officers for the purposes of the IGST. The exceptions are to be notified by the Government of India, on consultation or on the recommendation of the Council. Therefore, a notification or recommendation should ensue only when the government wants to carve out exceptions to the definition of 'proper officer' under Section 4 of the IGST. The normal rule is that, the officers appointed under the CGST or KGST to be the proper officers under Section 4 of the IGST. There cannot be any other interpretation to Section 4 of the IGST. As the provisions of the IGST, envisages a cross empowerment and not an exception that is required by issuance of a notification. 15. The learned counsel for the petitioner has placed heavy reliance upon the judgment of the High Court of Madras in the case of TVL VARDHAN supra. The said judgment would not be applicable to the facts obtaining the case at hand as the judgment is dealt with a different set of circumstance. 16. It is now germane to notice the interpretation of Section 4 of the IGST and the cross empowerment that it envisages. A division bench of the High Court of Punjab and Haryana in the case of Sodh....
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...., the respondent No.4 is not competent to issue show cause notice and the impugned seizure memo dated 15.07.2018 is wholly without jurisdiction. 5. The IGST Act, 2017 deals with taxability of inter-State supply of goods and services. Section 4 of the IGST Act reads as under : "4. Without prejudice to the provisions of this Act, the officers appointed under the State Goods and Services tax Act or the Union Territory Goods and Services tax Act are authorised to be the proper officers for the purposes of this Act, subject to such exceptions and conditions as the Government shall, on the recommendations of the council, by notification, specify." 6. From perusal of the aforesaid, it is clear that the officers appointed under the MPGST Act, 2017 was authorized to be proper officers for the purposes of the IGST Act. 7. At present, no notification was issued by the Central Government under section 4 of the IGST Act. By order dated October 12,2017, respondent No. 4 was authorized as proper officer and was bestowed with powers such as inspection, search and seizure under section 68 of the MPGST Act. Serial Nos. 31 and 57 of the order dated October 12, 2017....
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....r-State trade or commerce. As no notification has been issued under section 4 of the IGST Act and, therefore, respondent No. 4 was not competent to pass any order and, therefore, the petitioner without availing the statutory remedy has filed this writ petition. He has also drawn our attention to the notification dated October 13, 2017 issued by the Government of India, Ministry of Finance in respect of refund under section 20 of the IGST Act and submitted that similar type of notification is required and prayed for its quashment. 13. On due consideration of the arguments of the learned counsel for the parties so also the provisions of section 4 of the IGST Act, we are of the view that officers appointed under the MPGST Act are authorized to be proper officers for the purpose of IGST and, therefore, the contention of the petitioner that no notification was issued and in absence of any notification under section 4 of the IGST Act has no force, we cannot accept the contention of the petitioner that the action of respondent No. 4 is wholly without jurisdiction." (Emphasis supplied) The division bench of the High Court of Madhya Pradesh holds that the officers appointed u....
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....n No. 16266/2018 in the matter of Advantage India Logistic Pvt. Ltd. v. Union of India. 14. We have considered the observations made by the appellate authority in view of the provisions of IGST Act, 2017, CGST Act, 2017, the Haryana Goods and Services Tax Act, 2017 (for short, "the HGST Act, 2017") and the various notifications and orders made by the Government of India, Ministry of Finance. 15. The preamble of the IGST Act, 2017 clearly specify the applicability of the said Act provides for levy and collection of tax for inter-State supply of goods. The preamble reads as under : "An Act to make a provision for levy and collection of tax on inter-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto." 16. The CGST Act, 2017 makes provisions for levy and collection of the tax for intra-State supply of goods. The preamble of the said Act makes it clear which reads as follow: "An Act to make a provision for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto". 17. Section 20 o....
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....ier : Provided also that in cases where the penalty is leviable under the Central Goods and Services Tax Act and the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, the penalty leviable under this Act shall be the sum total of the said penalties : Provided also that where the appeal is to be filed before the appellate authority or the Appellate Tribunal, the maximum amount payable shall be fifty crore rupees and one hundred crore rupees respectively." 18. Since the vehicle was transporting the goods inter-State, therefore, the provisions of the IGST Act, 2017 as well the provisions of the GST Act, 2017 in so far applicable in view of the provisions of section 20 of the IGST Act, are applicable to the facts of the present case. In view of the said enabling provisions under section 20 of the IGST Act, 2017, the provisions of Chapter XIV of the GST Act, 2017 which deals with inspection, search, seizure and arrest and power of inspection, search and seizure (section 67 and 68 of the CGST Act, 2017) are applicable to the inter-State supply of goods. 19. As per the provisions of section 4 of the IGST Act, 2017, the o....
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....A division bench of the High Court of Orissa, at Cuttack, interpreting Section 4 of the IGST in the case of Narayan Sahu vs. Union of India and Others W.P.(C)28012/2024, disposed on 26.11.2024, holds as follows: "..... ..... ..... 6. Provision in section 4 of IGST Act is cross authorization, inter alia, of officers of State Tax. Before us there is no dispute that there has been aforesaid notifications for appointment of proper officers and assignment of powers and duties to them as officers of State Tax. For purposes of the IGST Act, the empowering cross authorization provision says that inter alia, officers of State Tax are authorized to be proper officers for the purposes of that Act. The authorization is subject to such exceptions and conditions as the Government shall, on the recommendations of the Council, by notification specify. It is clear that there has been no notification limiting authority of cross authorized officers by way of exception or condition. In the circumstances, the appointment and powers of officers of State Tax, as proper officers will, under the cross authorization provision, empower them to correspondingly act under the IGST Act." ....
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.... (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act shall not lie before an officer appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act. A reading of Section 6 (1) of the CGST Act makes it clear that the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be proper officers for the purposes of the Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. Unaided by authority, a reading of the provision suggests to me that by virtue of the operation of the provision itself, the officers appointed under the State Goods and Services Tax Act are proper officers for the purposes of the Central Goods and Services Tax Act, and it is only when any restriction or condition has to be placed on the exercise of power by any officer appointed under the State Goods and Services Tax Act that a notification as contemplated by the provisions of Section 6 (1) of the CGST Act has to be issued. Paragraph Nos. 2....
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.... section 54 and 55 of the CGST Act and not under rule 96 of the CGST Rules, 2017 (IGST Refund on exports). If no notification is issued to impose any condition, it means that the officers of State and Centre have been appointed as proper officer for all the purpose of the CGST Act and SGST Acts". While the opinion expressed in the communication referred to above does not deter this Court from taking a view different from the view expressed therein, as already noted, I am prima facie of the view that the opinion expressed in the said communication represents the true meaning of the provisions of Section 6 (1) of the CGST Act. The Madras High Court in Tvl. Vardhan Infrastracture (Supra) held thus: "61. Thus, Section 6 (1) of the respective GST Enactments empowers Government to issue notification on the recommendation of GST Council for cross-empowerment. However, no notification has been issued except under Section 6 (1) of the respective GST Enactments for the purpose of refund although officers from the Central GST and State GST are proper officers under the respective GST Enactments. 62. Since, no notifications have been issued for cross-empowerment with....
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..... The Registry shall place the matter before the Division Bench, if necessary, after obtaining orders of Hon'ble the Chief Justice." 5. We find ourselves in complete agreement with the prima facie view taken by the learned Judge [Justice Gopinath P.] in the reference order. The provisions of Section 6 (1) of the CGST Act make it abundantly clear that the cross-empowerment of the Officers of the SGST/UTGST Department to function as proper officers under the CGST Act is through the legislative mandate under Section 6 (1) of the CGST Act. It is a mandate and empowerment that is presently unqualified but expressly made subject to such conditions as the Government shall, on the recommendation of the Council, by notification, specify. In other words, while the statutory mandate at present is unqualified, it will be qualified in the event the Government specifies conditions for the exercise of power under the statutory mandate, pursuant to the recommendations of the Council. We cannot persuade ourselves to read the statutory mandate as one that does not presently bring about a cross-empowerment but merely envisages such a situation as and when a notification is issued at some....
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....oceedings on the same subject matter. Clearly the intent being that as the State Tax Officer is empowered to pass an order even under the CGST Act, there is no occasion for the Central Tax Officer to initiate parallel proceedings on the same subject matter. 62. As stated hereinabove, Section 6 of the CGST Act is intended to give the effect of harmonious convergence of the States and the Union for the same event for taxation." The Special Leave Petition preferred against the said judgment has also been dismissed as withdrawn, as is evident from the order dated 07.11.2022 of the Supreme Court in SLP (C). No. 5434 of 2022. Thus, we answer the reference by upholding the view taken by the learned Single Judge in the reference order for the reasons stated therein, as supplemented by the reasons in this judgment. Further, as we find that no other issue arises for consideration in the writ petition, we also deem it appropriate to dismiss the writ petition through this judgment. Needless to say, it will be open to the petitioner to pursue its statutory remedies against the show cause notice issued to it by raising all contentions available in law and thereafter ge....
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....of appeal would be available or otherwise, and reserved the matter on the said issue of availability of remedy under Section 107 of the KGST. 25. This Court had reserved the subject petition on 08-01-2025 to determine who would be the proper officer under Section 4 of the IGST. It was determined that the officer appointed under Section 6 of the KGST would be the proper officer under Section 4 of the IGST. Therefore, the jurisdiction, as aforesaid, was determined against the petitioner who had contended that an officer under Section 6 of the KGST, unless notified by the Government of India under IGST, would not become the proper officer, to initiate proceedings under the IGST. It was opined while disposing the petition that the petitioner could avail the remedy of filing an appeal before the Appellate Authority under Section 107 of the KGST. 26. The learned counsel for the petitioner submitted that there was no remedy of filing an appeal for the kind of order that is passed, as there is specific bar under the KGST. Therefore, appeal neither, under Section 107 of the KGST or Section 20 of the IGST was submitted to be unavailable to the petitioner. Therefore, the matter was hear....
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....ty for Advance Ruling, the Appellate Authority for Advance Ruling, [the National Appellate Authority for Advance Ruling, 5[the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of Section 171; ..... (8) "Appellate Authority" means an authority appointed or authorised to hear appeals as referred to in Section 107; 2. Definitions.-In this Act, unless the context otherwise requires,- ...... (4) "adjudicating authority" means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the National Appellate Authority for Advance Ruling, the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of Section 171; ...... (8) "Appellate Authority" means an authority appointed or authorised to hear appeals as referred to in Section 107; 3. Officers under this Act.-The Government shall, by notification, appoint the following classes of officers for the purposes of this Act, namely:- (a) Principal Chief Commissioners of ....
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....itions as may be specified, have jurisdiction over the whole of the State or over such local areas as the Commissioner may, by order, specify. 5. Powers of officers.-(1) Subject to such conditions and limitations as the Board may impose, an officer of central tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. (2) An officer of central tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of central tax who is subordinate to him. (3) The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him. (4) Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of central tax. 5. Powers of officers.-(1) Subject to such conditions and limitations as the Commissioner may impose, an officer of State tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. (2) An officer of State tax may exercise the powers and ....
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....cation, specify. (2) Subject to the conditions specified in the notification issued under sub-section (1),- (a) where any proper officer issues an order under this Act, he shall also issue an order under the Central Goods and Services Tax Act, as authorised by the said Act under intimation to the jurisdictional officer of central tax; (b) where a proper officer under the Central Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter. (3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act, shall not lie before an officer appointed under the Central Goods and Services Tax Act. 107. Appeals to Appellate Authority.-(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such per....
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....y 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 the adjudicating authority that passed the said decision or order: Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed....
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....isfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner 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. ....
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....assed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under Section 73 or Section 74 or Section 74-A. (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period 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 Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of central tax or an authority designated by him in this behalf. (16) Every order passed under this section shall, subject to th....
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.... then, all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under Section 122. (2) Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit: Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon: Provided further that the aggregate of such fine and penalty leviable shall not be less than the penalty equal to hundred per cent of the tax payable on such goods: Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) * * * (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act....
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.... shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon. (3) * * * (4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard. (5) Where any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in the Government. (6) The proper officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such proper officer, shall assist him in taking and holding such possession. (7) The proper officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine in lieu of confiscation, dispose of such goods or conveyance and deposit the sale proceeds thereof with the Government. CGST RULES, 2017 KGST RULES, 2017 108. Appeal to the Appellate Authority.- (1) An appeal to the Appellate Authority under sub-section (1) of S....
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....d to the appellant immediately. (2) The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in Rule 26. (3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf: Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of issue of provisional acknowledgement and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of submission of such copy. Explanation.-For the provisions of this rule, the appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number is issued. 109. Application to the Appellate Authority.-(1) An application to the Appellate Authority under sub-section (2) of Section 107 shall be filed in FORM GST APL-03,....
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....s Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to- (a) the Commissioner (Appeals) where such decision or order is passed by the Additional or Joint Commissioner; (b) the Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or Superintendent, within three months from the date on which the said decision or order is communicated to such person. (2) An officer directed under sub-section (2) of Section 107 to appeal against any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to − (a) the Commissioner (Appeals) where such decision or order is passed by the Additional or Joint Commissioner; (b) the Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or the Superintendent, within six months from the date of communication of the said decision or order. 109A. Appointment of Appellate Authority.-(1) Any person aggrieved by any decision or order passed under this Ac....
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....Provided that in the case of tax deducted at source, the deductor shall deduct tax at the rate of two per cent. from the payment made or credited to the supplier: Provided further that in the case of tax collected at source, the operator shall collect tax at such rate not exceeding two per cent, as may be notified on the recommendations of the Council, of the net value of taxable supplies: Provided also that for the purposes of this Act, the value of a supply shall include any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than this Act, and the Goods and Services Tax (Compensation to States) Act, if charged separately by the supplier: Provided also that in cases where the penalty is leviable under the Central Goods and Services Tax Act and the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, the penalty leviable under this Act shall be the sum total of the said penalties: Provided also that a maximum amount of forty crore rupees shall be payable for each appeal to be filed before the Appellate Authority or the Appellate Tribunal." (Emphasis supplied) I....
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.... issue of maintainability of a writ petition challenging an order of detention passed under Section 129 (3) of the CGST r/w Section 20 of the IGST, holds that the such orders should be challenged by way of the statutory remedy of appeal provided under Section 107 of CGST and the Writ Petition is only maintainable in certain circumstances mentioned below. The Apex Court holds as follows; "9. Section 107 is extracted below: "107. Appeals to appellate authority.-(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services ....
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....rnment 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 the adjudicating authority that passed the said decision or order: Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the appellate authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed....
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.... The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent. 12. For the above reasons, we allow the appeal and set aside the impugned order [Commercial Steel Co. v. Commr. of State Tax, 2020 SCC OnLine TS 291] of the High Court. The writ petition filed by the respondent shall stand dismissed. However, this shall not preclude the respondent from taking recourse to appropriate remedies which are available in terms of Section 107 of the CGST Act to pursue the grievance in regard to the action which has been adopted by the State in the present case. (Emphasis supplied) 29. The Division Bench of this Court in the case of Kesar Farm V. Addl. Commissioner Writ Appeal No.3974 OF 2019, Dated 02.12.2019., while upholding an order of a Singe Bench of this Court regarding availability of an appeal under section 107 of CGST, challenging an order under Section....
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.... the Central Act of 2017, which is not expressly provided by the Legislature. 6. We, therefore, concur with the view taken by the learned Single Judge that a remedy of an appeal under Section 107 of the Central Act of 2017 was available to the appellant. Hence, we find no merit in the appeal and the same is accordingly dismissed. Time granted by the learned Single Judge to prefer the appeal is extended by another four weeks from today. All contentions urged on merits of the appeal are not considered." (Emphasis supplied) The Division Bench holds that the non-obstante clauses in Sections 129 and 130 of CGST will not affect the remedy of appeal under Section 107 of the CGST and Section 121 of the CGST does not specifically state that orders under Section 129 and 130 of the CGST are not appealable. 30. A co-ordinate bench of this Court in Rajalakshmi Enterprises V. Additional Chief Secretary To Government Finance Department Writ Petition No. 12554/2020, Dated 13.11.2020., following the judgment of the Division Bench in the case of KESAR FARM supra holds that confiscation orders passed under Section 130 of the KGST Act and CGST Act r/w the IGST Act can only be challen....
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....ipitous action in the limitation period within which appropriate appeal could be filed by the petitioner. (Emphasis supplied) 31. On a similar issue of non-availability of an appeal under Section 107 of the CGST, a co-ordinate Bench of this Court in the case of K.B. Processing And Trading V. Joint Commissioner Of Commercial Taxes Writ Petition No. 105711 of 2023, Decided on 08.12. 2023, holds as follows: ".... .... .... 2. The petitioner is before this Court questioning the order at Annexure-A, dated 07.06.2023, passed by the 2nd respondent. The order is passed by the Authority under Section 130 of the Central Goods and Service Tax Act 2017 ('CGST Act' for short). 3. The learned counsel for the respondents raised a preliminary objection relating to the maintainability of the writ petition on the premise that the impugned order is appealable under Section 107 of CGST Act. 4. The learned counsel for the petitioner to substantiate his contention that writ petition is maintainable, urged the following contentions: a. The Authority who passed the order under Section 130 of the CGST Act has no jurisdiction to pass the order under Section....
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.... Authority empowered to impose penalty equivalent to the tax evaded, then by necessary implication, it can be concluded that the Authority also has power to determine the tax. Thus, the contention that there is no authority for the proper officer exercising power under Section 130 of the CGST Act to impose penalty, cannot be accepted. 9. As far as the contention that appeal remedy is not available, it is to be noticed that definition of 'Adjudicating Authority' as defined in Section 2 (4) of the KGST Act, cannot be made applicable to hold that the petitioner has no appeal remedy under Section 107 of CGST Act. 10. Section 2 (4) of the CGST Act defines the term "Adjudicating Authority" and under the said definition, the Commissioner is not kept out of the purview of the definition of "Adjudicating Authority" as is done under the KGST Act. 11. The definition of "Adjudicating Authority" under the State Act, cannot be made applicable to the definition of "Adjudicating Authority" under Section 107 of the CGST Act as the expression Adjudicating Authority under the CGST Act is defined including the Commissioner as the Adjudicating Authority. To interpret the mean....