CGST Act 2017
Case Title | Maurya Enterprises vs Additional Commissioner Central Excise & Others. |
Court | Uttarakhand High Court |
Honorable Judges | Justice Sharad Kumar Sharma |
Citation | 2022 (3) GSTPanacea 305 HC Uttarakhand W.P.No 2783 of 2021 |
Judgement Date | 09-March-2022 |
Council for Petitioner | Ravindra Singh |
Council for Respondent | Shobit Saharia |
Section | Section 174 of the CGST Act,2017 |
In Favour of | In Favour of Assesses |
The Uttarakhand High Court bench of Justice Sharad Kumar Sharma has held that reserved for the petitioner to resort to the Appellate proceedings, which are available to him, in accordance with law.
FACTS OF THE CASE
Brief facts of the case are, that the petitioner, which is a sole proprietorship enterprise, was initially issued with the Show Cause Notice No. C.No. V(15)Adj./M-II/Maurya/209/14/10637 dated 30.09.2014, which was issued by the Additional Commissioner, Central Excise and Service Tax, Meerut-II, as a consequence of exercising of his powers under the Finance Act of 1994, whereby, despite issuance of show cause notice dated 30.09.2014, when the petitioner has not participated or approached before the Additional Commissioner, Central Excise and Service Tax, he proceeded to pass an ex parte order on 31.12.2015, whereby, a demand of Rs. 37,22,254/- along with interest and penalties payable on it, was imposed against the petitioner When the petitioner sought a registration under the Goods and Services Tax Act, 2017 (for short “CGST Act, 2017”), he was identified to be a defaulter and as a consequence thereto, his registration made with the CGST was suspended and consequently as such he could not proceed to function as a firm in performing his business under the registration, which could have been given to the petitioner under the CGST Act, 2017 The petitioner, in the present writ petition, had prayed for quashing of the said Demand Notice dated 31.12.2015, which had been issued by the Joint Commissioner to the Central Excise & Service Tax Act, on the ground that they were ex parte orders, but the fact remains, that the challenge given to the said notice was made by the petitioner by filing a writ petition only on 05.12.2021, and that too when the Show Cause Notice No. ZA050821007467O dated 09.08.2021 was issued by respondent No. 3, with regard to cancellation of the registration of the petitioner as granted under the CGST Act, 2017. When the writ petition was filed before this Court, though at a belated stage, it was on the pretext that the knowledge of the tax dues, which he was otherwise supposed to pay by an order dated 31.12.2015, he could acquire the knowledge of it only by virtue of the notice, which had been issued by respondent No. 3 on 09.08.2021, hence, the writ petition was filed on 05.12.2021 The question emerged for consideration as to whether fixation of tax liability under the Finance Act, 1994, which was harnessed under changed legal circumstances with the enforcement of CGST Act, 2017 and the repealment of Finance Act, 1994, as to which Forum would be available to the petitioner, as against the impugned imposition of tax liability made by the impugned order dated 31.12.2015.
CGST Act 2017
COURT HELD
Considering the facts as recorded, held that in view of sub Clause (c) of sub Section (2) of Section 174 of the CGST Act, 2017, where it saves the rights and privileges including therewith the obligation and liability, which had accrued as a consequence of the amendment of Finance Act, 1994, in that eventuality, the assessee of the taxes under the Finance Act, 1994 could still avail the remedy of Appeal under Section 84 of the Finance Act, 1994, and the order of the Joint Commissioner, would be appellable under Section 84 of the Finance Act, 1994, which stand repealed to the extent it has been provided under sub Section (2) of Section 174 of the CGST Act, 2017. The writ petition is dismissed with liberty reserved for the petitioner to resort to the Appellate proceedings, which are available to him, in accordance with law.
CGST Act 2017
ANALYSIS OF THE JUDGEMENT
If the savings clause of Section 174 of the CGST Act, 2017, which is extracted hereunder in its totality, is taken into consideration, particularly, in the light of the implications provided under sub Section (3) of Section 174 of the Act, wherein it has laid down that under Section 6 of the General Clauses Act, 1897, will have an effect over the repealed provision hence in that eventuality under sub Section (1) of Section 174 or under sub Section (2) of Section 174 of the CGST Act, 2017, and in that eventuality, the petitioner would still have a right of preference of an Appeal under Section 84 of the Finance Act, 1994 before the Commissioner of Central Excise Even if as an effect of Section 174 i.e. repealment of the Finance Act, 1994 is taken into consideration, if the argument of the learned counsel for the petitioner is considered, then too, the order of Joint Commissioner, impugned in the present writ petition, would be appellable under Section 107 of the CGST Act, 2017.
Download PDF:
For Reference Visit: