Case Law Details
Shivam Hi Tech Steels Pvt. Ltd. Vs State of Jharkhand (Jharkhand High Court)
HC allows petitioner to file appeal manually if appeal is not accepted online for any technical reasons
The Hon’ble Jharkhand High Court in M/s Shivam Hi Tech Steels Pvt. Ltd v. State of Jharkhand [W.P.(T) No. 1823 of 2021 dated December 21, 2022] directed the assessee to seek alternative statutory remedy of appeal against the order of demand and detention of vehicle for alleged expiry of E-Way bill, passed by the State Taxes Officer.
Facts:
M/s Shivam Hi Tech Steels Pvt. Ltd. (“the Petitioner”) is engaged in the business of Ferro Alloy and other ancillary products who received a purchase order from M/s. Tata Steel Ltd. for supply of 500 tons of Ferro Alloys & Ferro Titanium to its plant at Jamshedpur & Kalinga Nagar for the period commencing from August 1, 2020 to May 31, 2021. The consignment was dispatched on January 30, 2021 and while in transit, the truck was intercepted on February 4, 2021 by the officers of Intelligence Bureau.
Subsequently, for alleged expiry of E-Way Bill, an order of detention and a Show Cause Notice (“SCN”) was issued on February 8, 2021. The Petitioner then executed a bond for an amount of INR 31,52,780/- for release of goods and vehicle on February 15, 2021 and accordingly, the truck and goods were released with imposing tax and penalty under Section 129(3) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).
However, on March 23, 2021, the State Tax Officer, Ranchi, proceeded suo-moto and register the truck driver in terms of Rule 16(1) of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”), for payment of tax and penalty.
The Petitioner contended that there being no evasion of tax and no contravention of Section 129(3) of the CGST Act and that the State Tax Officer has no jurisdiction to carry out the proceedings under Section of 129 of the CGST Act. Further, the proceeding has been initiated against the truck driver, but the truck driver is not registered as a dealer and also the Bank Guarantee had been furnished by the Petitioner. Furthermore, an attempt to file an appeal was made by the Petitioner, but due to some technical difficulties, the appeal was not filed.
Hence, this petition has been filed.
Issue:
Whether the writ petition filed by the Petitioner maintainable where efficacious remedy of appeal is available to the Petitioner?
Held:
The Hon’ble Jharkhand High Court in W.P.(T) No. 1823 of 2021 held as under:
- Noted that, an efficacious alternative remedy by way of appeal is available to the Petitioner under Section 107 of the CGST Act.
- Directed that, the Petitioner to approach the Appellate Authority against the order of detention passed.
- Stated that, in case the appeal is not accepted online for any technical reasons, the Petitioner shall file an appeal manually before the Appellate Authority, to raise all the issues of facts and law and the grounds available, which shall be decided by the Appellate Authority in accordance with law.
Relevant Provisions:
Section 107 of CGST Act:
“Appeals to Appellate Authority.
(1) Any person aggrieved by any decision or order passed under this Act or the Central 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 Tax Act, for the purpose of satisfying 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.
(6) No appeal shall be filed under sub-section (1), unless the appellant has paid-
(a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and
(b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed.
Provided that no appeal shall be filed against an order under sub-section (3) of section 129, unless a sum equal to twenty-five per cent. of the penalty has been paid by the appellant.
(7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.
(8) The Appellate Authority 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 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 or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed 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.
(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 jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.
(16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties.”
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
Heard learned counsel for the parties.
2. The instant writ application has been preferred for following reliefs:-
A) For issuance of any appropriate writ, order or direction, direction upon the respondents to show cause as to how an Officer of the State Taxes could carry out the proceedings under Section 129 of the Act that too, when he is not the proper Officer under the Central Goods & Services Tax Act, 2017, for a inter-state transaction, necessarily falling under the ambit of Integrated Goods & Services Tax Act, 2017, in view of Section 20 of the said Act, the proceedings, if any, could be carried out only under the Central Goods & Services Tax Act and the provisions of Central Goods & Services Tax Act has to mutatis mutandis apply.
B) For issuance of any appropriate writ, order or direction, direction upon the respondents to show cause as to when from the originating State till reaching the State of Jharkhand, the invoices were genuine E-way Bill were available, but only because of the fact that E-way Bill had expired, if at all, would attract the wrath of Section 129 of the Act, 2017 in the absence of any intent to evasion of tax or contravention of provisions of the Act.
C) For issuance of any appropriate writ, order or direction, for quashing and setting aside the order dated 15.02.2021 passed by the learned State Taxes Officer, Intelligence Bureau, Ranchi Division, Ranchi, whereby and whereunder, tax and penalty to the tune of Rs. 31,52,780/- has been imposed on the ground that E-way Bill had lost its validity without any finding of evasion of tax, which otherwise is also beyond jurisdiction.
D) Consequently, direction be issued to State Respondents that the Bank Guarantee furnished by the Petitioner Company for releasing of trucks, be released in favour of the Petitioner.
3. The brief facts of the case lie in very narrow compass. The petitioner is having its manufacturing unit at Chhattisgarh and is engaged in the business of Ferro Alloy and other ancillary products and in furtherance of its business, the petitioner received purchase order from M/S. Tata Steel Ltd. for supply of 500 tons of Ferro Alloys & Ferro Titanium to its plant at Jamshedpur& Kalinga Nagar for the period commencing from 01.08.2020 to 31.05.2021.One consignment forming part of the purchase order was dispatched on 30.01.2021 for Jamshedpur along with necessary documents including E-way Bill on truck bearing CG 04 JD 5295. While the goods were in transit, the truck was intercepted on 04.02.2021 by the Officers of Intelligence Bureau, Ranchi Division and on an allegation that the E-Way Bill had expired on 03.02.2021 itself, Form GST MOV 01 &Form GST MOV 02 were issued. Although, no discrepancy was found, save and except, expiry of E-way Bill in physical verification, however, Form GST MOV 04 was issued for contravention of the provision of the GST Act, 2017. As a natural corollary, the order of detention in Form GST MOV 06 and Show Cause Notice in Form GST MOV 07 were also issued on 08.02.2021 fixing the date of hearing on 17.02.2021. The petitioner executed a bond for an amount of Rs. 31,52,780/- in Form GST MOV 08 for release of goods and vehicle on 15.02.2021 and on such bond being furnished, the truck and goods were released andForm GST MOV 05 was issued imposing tax and penalty in exercise of powers under Section 129(3) of the Act in Form GST MOV 09. On 23.03.2021, the State Tax Officer, Ranchi, proceeded to suo-moto register the truck driver in terms of Rule 16(1) of the Rules, 2017, for payment of tax & penalty and issued Form gst reg 12 dated 23.03.2021 and as a consequence of which on 05.04.2021, Form Gst Drc 07 was issued.On the ground of there being no evasion of tax and no contravention of Section 129(3) of the Act, the assessee preferred the writ petition. Another challenge has been made to the jurisdiction of State Taxes Officer on the ground that for an inter-state transaction falling within the purview of Integrated Goods & Services Tax Act 2017, the State Tax Officer has no jurisdiction to carry out the proceedings under Section of 129 of the Act. Although, the proceeding has been initiated against the truck driver, but since the truck driver is not registered as a dealer and the Bank Guarantee was furnished by the company, hence, the company has chosen to file the present writ petition being an aggrieved party. Although, attempt to file an appeal was made, but because of technical difficulties, online appeal was not filed and the writ petition was preferred.
4. Mr. P.A.S. Pati, learned G.A.-II has filed counter affidavit inter-alia challenging the maintainability of the writ petition, as also on merits and has contended that the efficacious remedy of appeal is available to assessee, since the dispute pertains to questions of fact, the Hon’ble Court may not entertain the writ petition and relegate the petitioner to prefer an appeal. Since, the statement was made by the petitioner that it was having technical difficulty in filing the appeal and since, the proceedings were against the truck driver, this Court had issued notice to GSTN by impleading GSTN as Respondent No. 5 and pursuant whereto, GSTN has also filed its affidavit, however, the GSTN has stated in its counter that GSTN is a company entrusted with the responsibility of developing and maintaining the GST portal under the guidance and control of Department of Revenue, Government of India and nothing much could be elaborated on the issue.
5. Having heard learned counsel for the parties and after going through the series of events, as also, taking into consideration that an efficacious alternative remedy by way of appeal is available to the petitioner under Section 107 of JGST Act, we therefore, grant liberty to the petitioner to approach the appellate authority against the impugned order passed under Form GST mov 09. On his approaching, the State Taxes Officer, Intelligence Bureau, Ranchi, Division Ranchi shall provide the GSTIN number so that the petitioner can prefer an appeal online. In case the appeal is not accepted online for any technical reasons, he would be at liberty to prefer an appeal manually before the appellate authority. The petitioner shall be at liberty to raise all the issues of facts & law and the grounds available to it in the appeal which shall be decided by the appellate authority in accordance with law.
6. Consequently, the writ petition is disposed of with aforesaid direction and observation. Let it made be clear that this Hon’ble Court has not gone into the merits of the case of the parties.
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