M/S. Ganesh Cell Communication vs. The Assistant Commissioner Of GST And Central Excise

Held

The Court, while acknowledging the petitioner's delay and the availability of a statutory appeal, decided to offer partial relief. It quashed the impugned order on terms, citing the Supreme Court's decisions in Singh Enterprises vs CCE (2008) and CCE and Customs vs. Hongo India (P) Limited (2009), which suggest that directing a petitioner to file an appeal contrary to established principles might not be appropriate. The Court directed the petitioner to deposit 25% of the disputed tax within 30 days of receiving the order. Concurrently, the petitioner must file a reply to the Show Cause Notice, treating the impugned order as an addendum, along with the deposit. If these conditions are met, the respondent will conduct de novo proceedings and pass a fresh order within three months after hearing the petitioner. Failure to comply with these stipulations will allow the respondent to recover the tax as if the writ petition was dismissed in limine.

Facts

The petitioner, M/s. Ganesh Cell Communication, filed a writ petition challenging an order dated March 9, 2023, passed by the Assistant Commissioner of GST and Central Excise. The impugned order was issued under the Finance Act, 1994, and stipulated a two-month period for filing an appeal. The petitioner approached the High Court after this period had elapsed, seeking to quash the order. The respondent argued that the petition should be dismissed due to the petitioner's laches and cited a Supreme Court decision. The petitioner had an opportunity to file an appeal with a delay condonation application but did not do so.

Key Issues

1. Whether the writ petition is maintainable in light of the petitioner's delay and laches in pursuing the statutory remedy of appeal, as per Section 85 of the Finance Act, 1994? Petitioner's contention: The petitioner sought to quash the impugned order. While not explicitly stated, the act of filing a writ petition implies a challenge to the order's validity or the process followed. Respondent's contention: The respondent argued that the writ petition should be dismissed on grounds of laches. They also contended that the issue is covered against the petitioner by the Supreme Court's decision in Assistant Commissioner (CT) LTU, Kakinada and others vs. Glaxo Smith Kline Consumer Health Care Limited (2020 SCC Online SC 440).