TaxTMI 
TaxTMI 
2026 (7) TMI 1043
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.... levying interest and imposition of penalty thereon while undertaking adjudication process under Section 73 of the GST Act pertaining Financial Year 2017-18 by the Superintendent, CGST & Central Excise, Balasore-I Range, Balasore vide Order dated 15.12.2023, the petitioner has come up before this Court invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India for grant of following relief(s): "Under the aforesaid circumstances it is prayed that this Hon'ble Court may be graciously pleased to: (a) Admit the writ application; (b) Issue rule nisi calling upon the 0pp. Party No. 1 as to why order dated 29.09.2025 purportedly passed under Section 107 of the OGST/CGST Act vide Annexure-4 contrary to provisions of the OGST/CGST Act shall not be quashed being illegal, arbitrary, without jurisdiction and in violation of natural justice and unsustainable in law; (c) To refund the pre-deposit of Rs. 18,710/- paid during the filing of Appeal which is in contravention to the provisions of Section l07(6)(b) of the CGST/OGST Act, 2017 in the end of justice: (d) If the opposite party do not show cause or shows insuffici....
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....y when the registered person avails and utilises the input tax credit which is found to have been erroneously claimed interest under Section 50(3) of the GST Act would attract. It is further submitted that in view of subsequent amendment carried in the GST Act by way of insertion of Section 128A, the interest and the penalty demanded in the adjudication process under Section 73 relating to Financial Year 2017-18 has been waived. 3.1. Referring to certain decisions Ms. Kajal Sahoo, learned Advocate strenuously argued that the Appellate Authority failed to address the issue raised by the petitioner before him and upon erroneous reading of provisions of the statute ignored to appreciate that if a taxable person has allegedly delayed in filing his return, but discharges the liability of only tax on his own ascertainment and does not discharge the liability of interest, the only recourse available for the Proper Officer would be to initiate proceedings under Section 73(1) of the GST Act for recovery of the amount of "short paid" or "not paid" interest on the tax amount. Contrary to mandate of statute and interpretation on the point set forth by various Courts, the Appellate Authority....
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.... restored by way of disclosing in DRC-03 and Form GSTR-3B is required to be verified and examined by the authorities empowered under the said statute. We have no occasion to verify such documents as the same are not made part of writ petition. Such factual position as claimed by the petitioner is also subject to thorough examination with reference to the books of account vis-a-vis evidence available on record and/or demonstrated by the petitioner by adducing such evidence as it may think proper. 6. Though this Court is persuaded to consider that the GST Appellate Tribunal can adjudicate the correctness of demand raised by levying interest and legal justification to impose penalty by instituting proceeding under Section 73 of the GST Act, another significant fact which brought to the notice by the learned counsel for the petitioner is that relegating it to prefer appeal under Section 112 of the GST Act would tantamount to discharge the obligation which is contrary to statutory requirement. 6.1. Elaborating her argument, Ms. Kajal Sahoo, learned Advocate submitted that the Appellate Authority having not rectified the defective recording of figures in the Order-in-Original the p....
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....supply Act Tax/ cess Interest Penalty Fee Others Total 1 18 794,459,539.00 Odisha IGST 187,093.00 0.00 60,8 45.00 0.00 0.00 247,938. 00 6.5. Ex facie it is discernible from the above table that amount of Rs. 1,87,093/- demanded towards "Interest" vide Form GST DRC-07 has been shown under the heading "Tax". It was submitted that due to such apparent mistake in the adjudication order, which the Appellate Authority failed to diligently perceive while disposing of appeal under Section 107 of the GST Act, the petitioner is put to prejudice. In order to file appeal before the Goods and Services Tax Appellate Tribunal assailing the Appellate Order, the petitioner is required to make deposits in terms of Section 112(8) of the GST Act. The deposit contemplated under said sub-section does not encompass amount towards interest or penalty, rather the petitioner is required to make pre-deposit towards "remaining amount of tax in dispute". It is vehemently contended by Ms. Kajal Sahoo, learned Advocate that serious prejudice would be caused if the petitioner is relegated to approach the Goods and Services Tax Appellate Tribunal as Sri Avin....
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....inasmuch as the online system of filing of appeal would not allow the petitioner to do so without pre-deposit (percentage of remaining amount of tax) being made under sub-section (8) of Section 112 of the GST Act. If the petitioner is directed to avail remedy of appeal, then it would be mandatory requirement to deposit ten percent of "interest" component which is wrongly affirmed in the Appeal as if it is forming part of "Tax". Learned Junior Standing Counsel has conceded to such submission. 6.10. Faced with such situation, this Court is, therefore, inclined to interfere with the Order-in-Appeal dated 29.09.2025 passed by the Additional Commissioner of GST (Appeal) in Appeal bearing No.391/BBSR-GST/APPEAL/2024. 7. Under the above premises, the Order-in-Appeal dated 29.09.2025 passed by the Additional Commissioner of GST (Appeal) in Appeal bearing No. 391/BBSR-GST/APPEAL/2024 is set aside and the matter is remitted to the Appellate Authority for deciding the appeal on merit afresh without being swayed away by earlier order and pass appropriate order in accordance with law after hearing the petitioner. 8. In the result, the writ petition including pending Interlocutory Appli....