Case Law Details
Paradeep Phosphates Ltd. Vs Asst. Commissioner, CGST And Central Excise (Orissa High Court)
we are of the considered opinion that since an efficacious statutory remedy is available to the petitioner to assail the legality and validity of the order passed under Annexure-5, this Court should be slow in entertaining the writ petition at this stage. The petitioner has also not made out any ground for interference with the order under Annexure-5 in a writ petition which he cannot raise before the Appellate Authority. The grounds raised by the petitioner can be considered by the Appellate Authority in exercise of power under Section 107 of the Act.
In that view of the matter, this Court without interfering with the impugned order under Annexure-5, disposes of this writ petition granting liberty to the petitioner-Company to assail the legality and validity of Annexure-5 under Section 107 of the Act.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
Heard Mr.Jnanesh Mohanty, learned counsel for the petitioner and Mr.R.S.Chimanka, learned Senior Standing Counsel for CGST & Central Excise through Video Conferencing mode.
2. The petitioner-Company in this writ petition prays for a direction to set aside the order passed by the Assistant Commissioner, CGST and Central Excise, Cuttack Division (OP No.1) in rejecting the refund of unutilized ITC to the petitioner-Company accumulated taking into account of inverted duty structure. The petitioner-Company further prays for a direction to the opposite party No.1 to pass a reasoned and speaking order in accordance with law taking into consideration the Circular No.59/33/2018-GST dated 04.09.2018 (Annexure-4) issued by the Central Board of Indirect Taxes and Customs affording opportunity of hearing to the petitioner as well as for consequential reliefs.
3. Mohanty, learned counsel for the petitioner-Company submits that the petitioner-Company is a manufacturer of fertilizer registered under the provisions of the Central Goods and Services Tax Act, 2017 (for short, ‘the Act’) bearing registration No. 21AABCP3276D1ZW. For the manufacturing operation, the petitioner-Company imports various raw materials and discharges customs duty-IGST at the applicable rate against each import made. In addition to the inputs made for manufacturing operation, the petitioner also obtains input services of various kinds, such as contract labour consultancy service, repair of plant and machinery, ocean freight etc. and paid Goods and Service Tax (GST) at applicable rate at input service providers. The petitioner-Company also pays IGST on ocean freight at applicable rate. Most of the inputs and input services that the petitioner-Company procures attract a higher rate of GST (18%) than the rate of GST applicable on the outward supplies (5%). In that view of the matter, the petitioner is entitled to the refund of unutilized ITC accumulated on account of inverted duty structure. Accordingly, the petitioner-Company submitted an application on 12.03.2020, refund ARN receipt, letter dated 12.03.2020 enclosing relevant documents relating to refund for the period ending November, 2019 (Annexure-1 series). On receipt of such application, the Assistant Commissioner, CGST and Central Excise, Cuttack-II Division, Cuttack (OP No.1) issued show-cause notice to the petitioner-Company in Form-GST-RFD-08 dated 12.03.2020 (Annexure-2) in terms of Rule-92 (3) of the CGST Rules proposing rejection of refund claimed by the petitioner and the petitioner-Company was required to reply to the same. Accordingly, the petitioner submitted its reply to the show cause notice under Annexure-2 by submitting its reply dated 15.04.2020 under Annexure-3. However, the opposite party No.1, without considering the reply filed by the petitioner as at Annexure-3 and without assigning any reason whatsoever, passed the impugned order dated 06.05.2020 under Annexure-5. It is his submission that the impugned order under Annexure-5 discloses a complete non-application of mind, which has been passed in a pre-designed printed format generated electronically in the system. He also made elaborate argument in support of his entitlement of refund claimed under Annexure-1 relying upon the Circular of the Board as at Annexure-4. He, therefore prays to set aside the impugned order under Annexure-5 and prays for a direction to remit the matter to the opposite party No.1 to pass a reasoned order giving opportunity of hearing to the petitioner.
4. Chimanka, learned Senior Standing Counsel for CGST and Central Excise, on the other hand submits that the petitioner-Company has an efficacious statutory remedy under Section 107 of the Act for redressal of its grievance by filing an appeal. As such, this writ petition is not maintainable.
5. The statement made by Mr. Chimanka, learned Standing Counsel for CGST and Central Excise is not disputed by the learned counsel for the petitioner-Company. He, however, submits that since the impugned order is a cryptic and non-speaking one and was passed without giving opportunity of hearing to the petitioner, the same is void ab initio. The opposite party No.1 is required to adjudicate upon Annexure-1 afresh by passing a reasoned order giving reasonable opportunity of hearing to the petitioner.
6. Taking into consideration the submissions made by learned counsel for the parties, we are of the considered opinion that since an efficacious statutory remedy is available to the petitioner to assail the legality and validity of the order passed under Annexure-5, this Court should be slow in entertaining the writ petition at this stage. The petitioner has also not made out any ground for interference with the order under Annexure-5 in a writ petition which he cannot raise before the Appellate Authority. The grounds raised by the petitioner can be considered by the Appellate Authority in exercise of power under Section 107 of the Act.
7. In that view of the matter, this Court without interfering with the impugned order under Annexure-5, disposes of this writ petition granting liberty to the petitioner-Company to assail the legality and validity of Annexure-5 under Section 107 of the Act.
7.1 In the event, the petitioner files an appeal under Section 107 of the Act along with a copy of this order within a period of 15 days before the appropriate authority, the same shall be disposed of in accordance with law within a period of three months thereafter by examining the applicability of the Central Board of Indirect Taxes and Customs Circular dated 04.09.2018 (Annexure-4).
As Lock-down period is continuing for COVID-19, learned counsel for the petitioners may utilize the soft copy of this order available in the High Court’s website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020.
