Laxmidhar Barik vs. Joint Commissioner Of State Tax (Appeal), CT And GST, Balasore

Mr. Dash, learned advocate appears on behalf of petitioner and with reference to our earlier order dated 3rd January, 2025 reiterates, his client is disputing imposition of penalty in its entirety. As such there be unconditional stay of impugned order because Tribunal has not been constituted.

Mr. Mishra, learned advocate, Standing Counsel appears on behalf of revenue and hands up his instruction dated 8th January, 2025. He submits, the goods being perishable were returned on application made by petitioner. As such there is no money had with revenue Order No. 02. pursuant to the detention. He submits further, there be direction for furnishing bank guarantee of appropriate amount, for petitioner to obtain stay of impugned appellate order from the writ Court by reason of absence of Tribunal.

Mr. Dash in reply submits, his client has informed revenue regarding value of goods damage pursuant to the detention. He submits, there is no provision for requiring his client to furnish bank guarantee.

We reproduce below paragraphs-1 to 4 from said order dated 3rd January, 2025. “1. Mr. Dash, learned advocate appears on behalf of petitioner and submits, his client is aggrieved by order dated 22nd November, 2024 made under section 107 in Odisha Goods and Services Tax Act, 2017. It was made by the First Appellate Authority. His client wants to prefer appeal to the Tribunal but it has not been constituted. He submits further, by impugned order there was imposition of penalty at ₹43,84,726/-.

He relies on order dated 11th December, 2024 made by us in W.P.(C) no.30308 of 2024 (M/s. Sahu Communication, Dhenkanal v. Chief Commissioner of CT and GST, Cuttack and others) to submit, there be similar direction except regarding pre-deposit.

Mr. Das, learned advocate, Additional Standing Counsel appears on behalf of revenue and prays for adjournment to obtain instructions.

Sub-section (8) in section 112 of clause (a) requires appellant before the Tribunal to fulfill pre-condition of paying, inter alia, penalty as is admitted by him. Clause (b) does not talk about penalty. On query made Mr. Dash submits, his client disputes imposition of the entire penalty. He submits, there be stay of operation in respect of demand notice issued by Assistant Commissioner of Sales Tax to his client’s banker, as intimated by latter’s letter dated 17th December, 2024.”

We accept submission made on behalf of petitioner that there is no provision to require petitioner to deposit any sum in respect of imposition of penalty, entirely disputed by him in a situation where he cannot prefer and prosecute appeal as Tribunal has not been constituted. In the circumstances, there will be stay of impugned order till four weeks after the Tribunal is constituted.

The writ petition is disposed of.