Tapas Kumar Das vs. Asst. Commissioner Of GST And Central Excise, Cuttack Ii Div.
Original PDF →Facts
The petitioner, Tapas Kumar Das, filed a writ petition before the Orissa High Court challenging a Demand-cum-Show Cause notice dated 30.09.2020 and an Order-in-Original dated 29.07.2022, both issued by the Assistant Commissioner of GST and Central Excise, Cuttack-II Division. The petitioner argued that the demand raised was barred by limitation, a contention that was allegedly not considered by the Assistant Commissioner in the impugned order. The revenue, represented by the Senior Standing Counsel for GST, CT & Customs, argued that the impugned order was appealable, and therefore, the petitioner should have availed the appellate remedy instead of approaching the High Court.
Held
The Court acknowledged that the petitioner had raised the issue of limitation, but this contention was not considered by the Assistant Commissioner while passing the Order-in-Original. However, the Court noted that the question of limitation is not a pure question of law and can be raised before the appellate authority. Since there was no dispute that an appeal lay against the impugned order, the Court was not inclined to entertain the writ petition. The petitioner was granted liberty to pursue their remedy before the appellate authority and raise all the questions that had been presented before the High Court. The writ petition was disposed of with this liberty.
Key Issues
1. Whether the Assistant Commissioner of GST and Central Excise, Cuttack-II Division, failed to consider the petitioner's contention regarding the demand being barred by limitation when passing the Order-in-Original dated 29.07.2022? Petitioner's Contention: The petitioner argued that the demand raised in the show cause notice was grossly barred by limitation, and this crucial point was not taken into consideration by the Assistant Commissioner while passing the Order-in-Original, rendering the order liable to be quashed. Revenue's Contention: The revenue contended that the order in question was appealable, and thus, the petitioner should have pursued the statutory remedy of appeal before the appellate authority rather than filing a writ petition before the High Court.
Sections Cited
None explicitly mentioned in the provided text, but the context implies provisions related to demand and recovery, and appeals under GST law.
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Cause title — parties, addresses and appearances
ORDER 23.03.2023
Order No.
This matter is taken up through hybrid mode.
Heard Mr. S. Acharya, learned counsel for the petitioner and Mr. T.K. Satapathy, learned Sr. Standing Counsel for the GST, CT & Customs.
The petitioner has filed this writ petition seeking to quash the Demand-cum-Show Cause notice dated 30.09.2020 served on the petitioner by opposite party no.1 under Annexure-1 and to quash the Order-in-Original dated 29.07.2022 passed by opposite party no.1 under Annexure-3. 4. Mr. S. Acharya, learned counsel for the petitioner contended that pursuant to the demand and show cause notice issued, the petitioner has filed his reply in Annexure-2 stating inter alia that the demand so raised is grossly barred by limitation, therefore, the petitioner is not liable to pay the said amount. But that has not been taken into consideration by the Assistant Commissioner GST & Central Excise, Cuttack-II Division in Annexure-3. Therefore, the said order is liable to be quashed.
Mr. T.K. Satapathy, learned Senior Standing Counsel appearing for GST, CT & Customs contended that the order in question being appealable one, the petitioner should not have approached this Court by filing the present writ petition.
Having heard learned counsel for the parties and after going through the record, this Court finds that even though the petitioner had raised the question of limitation, the same was not taken into consideration by the Assistant Commissioner while passing the original order in Annexure-3. Be that as it may, since the question of limitation is not a pure question of law, the same can be raised before the appellate authority. There is also no dispute that against the order impugned, appeal lies.
In view of such position, this Court is not inclined to entertain the writ petition. The petitioner is permitted to pursue his remedy before the appellate authority and raise all the questions, which has been raised before this Court.
With that liberty, the writ petition stands disposed of.
Arun
(DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
JUDGE
Reproduced from the public record of the Orissa High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.