BharatTaxGST

M/S Shri Krishna Pharmaceutical And Surgicals Agencies Thru. Partner Amit Kapoor vs. Principal Commissioner Central Goods And Services Tax And Central Excise Lko. And Another

Original PDF →
WTAX/364/2024HC AllahabadGSTCNR UPHC02090975202403 March 2025Bench: PANKAJ BHATIA2 pages
For Petitioner: Manish SinghFor Respondent: Ratnesh Lal, Dipak Seth, Deepak Seth, With, Case :- WRIT TAX No. - 367 of 2024, Petitioner :- M/S Shri Krishna Surgicals Thru. Proprietor Amit Kapoor, And Another, Respondent :- Principal Commissioner, C.G.S.T. And Central, Excise, Lucknow And Another

No AI summary yet for this judgment.

Cause title — parties, addresses and appearances
Neutral Citation No. - 2025:AHC-LKO:12727 Court No. - 7 Case :- WRIT TAX No. - 364 of 2024 Petitioner :- M/S Shri Krishna Pharmaceutical And Surgicals Agencies Thru. Partner Amit Kapoor Respondent :- Principal Commissioner Central Goods And Services Tax And Central Excise Lko. And Another Counsel for Petitioner :- Manish Singh Counsel for Respondent :- Ratnesh Lal,Dipak Seth,Deepak Seth With Case :- WRIT TAX No. - 367 of 2024 Petitioner :- M/S Shri Krishna Surgicals Thru. Proprietor Amit Kapoor And Another Respondent :- Principal Commissioner,C.G.S.T. And Central Excise,Lucknow And Another Counsel for Petitioner :- Manish Singh Counsel for Respondent :- Ratnesh Lal,Dipak Seth Hon'ble Pankaj Bhatia,J. 1. Both the writ petitions arise out of the same orders, as such are being decided by means of this common order. 2. Heard the counsel for the petitioner and Sri Dipak Seth with Sri A. K. Jain who appears for the respondents. 3. Both the petitions have been filed challenging the order dated 21.11.2024 passed by the respondent no.2 in case of both the petitioners whereby a demand has been confirmed under section 74 of the GST Act and a demand of IGST has also been levelled against the petitioner along with the penalty. 4. The neat submission of the counsel for the petitioner is that in respect of charging of duty on the goods, which fall under heading HSN 9021, clarificatory circulars were issued on 01.08.2023 and 11.10.2024, which have not been considered and a demand has been quantified against the petitioner which is in the teeth of the circulars issued. He argues that the order impugned was passed on 21.11.2024 when the two circulars dated 01.08.2023 and 11.10.2024 were in vogue. He thus argues that the demand of duty is contrary to the clarificatory circulars issued, which aspect has not been considered while passing the

impugned judgment.

5.

The counsel for the respondents, on the other hand, pleads that a statutory appeal is prescribed against the said order under section 107 of the GST Act and the petitioner should be relegated to pursue the remedy of appeal. He however, argues that it was the burden of the petitioner to have placed the circulars, proposed to be relied upon before the adjudicating authority, which burden has not been discharged by the petitioner. He argues that it is clearly well settled that to claim the benefit of any beneficial circular, it is the petitioner who should bring the same to the notice of the authorities concerned, which according to the counsel for the respondent, has not been done. He further argues that the said Circulars are applicable or not is the subject matter, which could have been decided if the reliance was placed upon the circulars, which was not done.

6.

Be that as it may, on a primary reading of the Circular, it is clear that the GST Council had taken a decision in respect of the goods falling under the heading HSN 9021 and it is also clearly well settled that the Circulars issued by the GST Council are binding on the department.

7.

Apparently, from the impugned order, there is no consideration of the Circulars, as such, no useful purpose would be served in relegating the petitioner to the remedy of appeal. Thus, on the limited question of the circulars, which are binding on the department, not being taken into account, the order impugned dated 21.11.2024 is set aside. The matter is remanded to the authority concerned to pass a fresh order.

8.

While doing so, the benefit of the Circular No.200/12/2023- GST dated 01.08.2023 and Circular No.236/30/2024-GST dated 11.10.2024, as claimed by the petitioner, shall be specifically considered by the adjudicating authority. The petitioner is also permitted to file an application claiming the benefit of the said circulars indicating the manner in which he is entitled to the benefit of the said Circulars, which shall be considered by passing a fresh order.

9.

To avoid any further delay, it is directed that the petitioner shall appear along with the contentions, that he may propose to rely, before the respondent no.2 on 11.03.2025 at about 12:00 Noon and the respondent no.2 shall thereafter pass an order in accordance with the directions given by this court preferably within a period of four weeks of the said date in accordance with law.

10.

With the said observations, both the writ petitions stand disposed off. Order Date :- 3.3.2025 VNP/- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.