Case Law Details
Pamper Ovenfresh Foods Private Limited Vs Additional Commissioner Central Tax (Calcutta High Court)
The Calcutta High Court considered a writ petition challenging the validity and legality of a notice dated 5th December, 2025 issued under Section 74 of the CGST Act, along with all connected proceedings. The petitioner contended that the authority lacked jurisdiction to invoke Section 74 since the essential ingredients for applying the provision were absent. It was argued that extrusion fried snacks and pellet fried snacks were correctly classified under sub-heading 2106 90 99 read with serial no.46 of Schedule II of the GST Rate Notification, attracting 12% GST, and therefore proceedings under Section 74 were not maintainable. The petitioner also challenged a separate show-cause notice issued under Section 73 proposing reclassification of the products.
The petitioner relied on circulars dated 31st January, 2023 and 11th October, 2024 to submit that ‘Namkeen’ had consistently been classified under the relevant entry taxable at 12%. The respondents opposed the writ petition and argued that a show-cause notice could be challenged only in exceptional circumstances. It was also submitted that despite an undertaking given by the petitioner on 26th May, 2025 to furnish a detailed reply, no proper response was submitted before the authority, leading to issuance of the Section 74 notice.
The High Court observed that since the petitioner had challenged the circular dated 13th January, 2023, an extensive hearing on the vires of the issues involved was necessary. The Court held that no interim order was warranted at that stage and directed the respondents to file an affidavit-in-opposition. The matter was listed for hearing on 26th June, 2026.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The Court: The petitioner, in the instant case, challenges, inter alia, the validity and legality of the notice dated 5th December, 2025, issued by respondent no.1 under Section 74 of the CGST Act (hereinafter referred to as the said Act) and all other connected and consequential proceedings.
Main grievance of the petitioner is that respondent no.1 does not have any jurisdiction to issue a notice under Section 74(1) of the said Act as the essential ingredients for invoking the said provision are not satisfied in the present case. It is further submitted that the respondent no.1 failed to consider that the petitioner correctly classified extrusion ‘fried snacks and pellet fried snacks’ under the relevant sub-heading 2106 90 99 read with serial no.46 of the Schedule II of the Rate Notification, and therefore Section 74 is not applicable. A show-cause notice issued by the respondent no.1 under Section 73 of the said Act proposing reclassification of the product in question is also stated to be without jurisdiction.
Learned counsel appearing for the petitioner draws the attention of this Court to Chapter 21 of Miscellaneous Edible Preparation to submit that the product ‘Namkeen’ has all along been classified as attracting tax at the rate of 12% instead of 18%. The petitioner relies upon circulars dated 31st January, 2023 and 11th October, 2024, to demonstrate that the product ‘Namkeen’ has consistently been classified under the relevant subheading read with serial no.46 of Schedule II, which is the subject-matter of challenge in the present writ petition.
Learned senior counsel Mr. Vipul Kundalia, vehemently opposes the same and raises an objection to the maintainability of the writ petition. He submits that a show-cause notice can be challenged only in exceptional circumstances and, in the present case, since the petitioner despite giving an undertaking, failed to respond to the show-cause notice, the concerned authority has been compelled to issue a show-cause notice under Section 74 of the said Act.
Learned counsel draws the attention of this Court to Clause 2.5 at page 126 of the writ petition to demonstrate that the assessee, by way of a reply, dated 26th May, 2025 has been given an undertaking to furnish a detailed and proper reply, however, the same has not been duly submitted before the authority concerned by the petitioner.
In conspectus of the above, as adumbrated herein, I find that since the petitioner has challenged the circular dated 13th January, 2023, a proper and extensive hearing is required with regard to the vires of the issues involved herein. I further find that no interim order is warranted at this stage.
The respondents are directed to file an affidavit-in-opposition within two weeks after vacation; reply thereto, within a week thereafter.
List the matter on 26th June, 2026.
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