M/S Kay Pan Fragrance PVT. LTD. vs. State Of U.P. And 4 Others

Held

The Court held that the writ petition was not maintainable as filed, given the availability of a statutory remedy of appeal under Section 112 of the C.G.S.T. Act, 2017. The Court acknowledged the petitioner's contention regarding the non-constitution of the tribunal but relied on the Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019. This order provides that the period for filing an appeal shall be considered from the date the President or State President of the Appellate Tribunal enters office after its constitution. Therefore, the petitioner was advised to wait and avail the remedy of appeal as and when the Tribunal is constituted. The Court noted that the seized goods had already been released, mitigating immediate prejudice. The petition was disposed of with a direction to the petitioner to invoke the appellate remedy as per the Removal of Difficulties Order.

Facts

The petitioner, M/s Kay Pan Fragrance Pvt. Ltd., filed a writ petition challenging a penalty order dated December 18, 2017, an appellate order dated January 6, 2018, and seeking a refund of security deposited. The petitioner bypassed the statutory remedy of appeal under Section 112 of the C.G.S.T. Act, 2017, citing the non-constitution of the appellate tribunal. The respondent State argued that the Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019, provides a mechanism for filing appeals once the tribunal is constituted, and that the seized goods have already been released, causing no immediate prejudice to the petitioner. The petitioner's counsel conceded to this legal position and the fact of goods release.

Key Issues

1. Whether the petitioner is entitled to maintain a writ petition under Article 226 of the Constitution bypassing the statutory remedy of appeal under Section 112 of the C.G.S.T. Act, 2017, on the ground of non-constitution of the appellate tribunal? Petitioner's Contention: The petitioner argued that the writ petition was maintainable as the appellate tribunal had not been constituted, thus rendering the statutory appeal remedy unavailable. The petitioner sought a direction for the refund of security deposited. Respondent's Contention: The State contended that the Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019, provides for a situation where the period for filing an appeal would be considered from the date the tribunal is constituted. They further argued that since the goods have been released, no prejudice is being caused to the petitioner at present, and they can wait to avail the appellate remedy.