Britannia Industries Ltd. VS  Union of India

1. Rule returnable forthwith. Learned advocates appearing for the respective respondents waive service of notice of rule.

1.1 These petitions, though different on facts, essentially raise a common question of interpretation of Section 107 of the Central Goods and Services Tax Act, 2017 (“CGST” for short) and Rule 108 of the Central Goods and Services Tax Rules, 2017 and related provisions.

SPECIAL CIVIL APPLICATION NO. 14867 of 2022

2. This petition is filed for the following prayers:

“9(a) That this Hon’ble Court may be pleased to issue a writ of Mandamus or an appropriate writ, order or direction, ordering, directing or declaring the Ld. Assistant Commissioner to make available and upload the electronic copy of the OIO dated 23.08.2019, on the GST Portal for the purpose of filing appeal in accordance with Section 107 of the CGST Act, 2017 and Rule 108(1) of the CGST Rules, 2017.

(AA) That this Hon’ble Court may be pleased to issue a Writ Petition of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to quash and set aside the Impugned Order in Appeal passed by Ld. Commissioner (Appeals) to the extent it has held that the impugned order in original dated 23.08.2019 has attained the finality and denied the refund of unutilized input tax credit.

(b) That this Hon’ble Court may be pleased to issue a writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction ordering, directing or declaring the Ld. Assistant Commissioner to re-credit the rejected amount of refund claim to the Electronic Credit Ledger of the Petitioner in accordance with Rule 93 of the CGST Rules, 2017.

3. Facts of the said petition, briefly stated, indicate that the petitioner is a Public Limited Company engaged in the manufacture of food products such as biscuits, bread, rusk etc. The manufacturing unit is situated in Kandla Special Economic Zone and is engaged in the export of goods under Letter of Undertaking. It is the case of the petitioner that it accumulated unutilized Input Tax Credit of IGST distributed by the Input Service Distributor for services related to the SEZ Unit in its Electronic Credit Ledger.

3.1 An application under Section 54 of the CGST Act was filed for refund amounting to Rs. 37,28,087/- for the period from April 2019 to June 2019. The application was filed on 16.7.2019. The claim for refund was rejected on 23.08.2019 and the Order-In-Original (O-I-O) was manually served. A fresh application was filed on 27.10.2020.

3.2 The authorities issued a Show Cause Notice on 11.11.2020 asking the petitioner to show cause as to why a fresh application was filed for refund once the claim was rejected vide an order dated 23.08.2019 and no appeal was filed against the same. A reply was filed on 1.12.2020 and by an Order in Original dated 3.12.2020 the claim was once again rejected on the ground that once the Order dated 23.08.2019 rejecting the same claim was passed and no Appeal was filed, the same having attained finality, the claim was not maintainable.

3.3 An appeal filed against the order dated 3.12.2020 was rejected by the Appellate Authority on 21.06.2021 on the ground that there was no powers to review an earlier order. It is the case of the petitioner that had the Order-In-Original dated 23.08.2019 been uploaded the petitioner could have filed an appeal under Rule 108 of the CGST Rules and but for it not being done so, the petitioner could not file an Appeal electronically, which is the only manner of filing appeals. Non-receipt of an electronic copy of the order prevented the petitioner from filing an appeal in the required electronic mode.

SPECIAL CIVIL APPLICATIONS NO. 4876 and 5731 of 2023

4. Since the facts and the prayers of these two petitions are common, prayers and facts of Special Civil Application No. 4876 of 2023 are set out below:

“8. (a) That this Hon’ble Court may be pleased to grant an interim relief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, ordering and directing the respondent to release all bank accounts of the Petitioners as provided in Annexure-B, by way of quashing the letters of Respondent No. 3 dated 09.12.2022 and 12.12.2022.

(b) That this Hon’ble Court may be pleased to grant an interim relief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, asking the Respondent No. 2 to upload the Impugned Order 29.04.2021 on GSTN Portal as is mandated under Section 107(1) of the CGST Act, 2017 read with Rule 108(1) of the CGST Rules, 2017.

(c) That this Hon’ble Court may be pleased to grant an interim relief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, to quash and set aside the Impugned Orders passed by Respondent No. 2 and decide them afresh after according an opportunity of hearing.

5. The petitioners are partners in a partnership firm M/S Sukhdham Upvan formed for a real estate scheme. The shares are 11% and 4% respectively. That one Darpan Shah is a Managing and a Majority partner. It is the case of the petitioner that on inquiry with the Bank the petitioner was informed that by virtue of notices dated 9.12.2022 and 12.12.2022, the Assistant Superintendent of CGST had directed the Bank to debit-freeze the accounts of the petitioner in lieu of tax recoveries from the Partnership Firm. The recovery of Rs. 99,18,154/service tax dues was outstanding by virtue of the order dated 31.3.2021 and Rs. 3,31,12,518 towards GST dues vide order dated 29.04.2021.

5.1 It is the case of the petitioners that the Orders-In-Original dated 31.3.2021 and 29.4.2021 were never uploaded on the GST Portal and hence the petitioners were prevented from filing the appeals which can only be filed through electronic mode and not manually as the process other than electronic mode is not notified. It is the case of the petitioners that the hand delivery of the orders was given on 6.1.2023 and an appeal has been filed in the service tax matter in connection with the order dated 31.3.2021 whereas since the order dated 29.4.2021 wasn’t uploaded the petitioners are prevented from filing appeal and therefore the consequential debit freezing of accounts is bad.

6. Mr. Anandodaya Mishra Learned Advocate for the petitioners would make the following submissions:

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