The Allahabad High Court held that the appellate authority exercising jurisdiction under Section 107 of the Central Goods and Service Tax Act, 2017 does not have the power to remand the case back to the adjudication authority and it only has the power to confirm or modify or annul the order under appeal.
Brief Facts:
The present petition has been filed to assail the order dated 21.2.2023 passed by the Joint Director (CGST) (Appeals), Noida remanding the case of the petitioner back to the original adjudicating authority for de novo adjudication after giving due opportunity to the petitioner.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner submitted that the impugned order at least the operative portion has been passed in defiance of the provisions of Section 107(11) of the CGST Act, 2017.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent raised a preliminary objection as to the maintainability of the writ petition and further submitted that the impugned order is appealable under Section 112 of the Act and therefore, no interference may be made.
Observations of the court:
The court first stated that the preliminary objection as to the availability of statutory appeal is not sustained as the Tribunal has not yet been constituted and further stated that in any case in the face of complete failure on the part of appeal authority to exercise its jurisdiction in accordance with the law, the writ court may not hold itself to offer the necessary corrections required, at this initial stage itself.
Further, it was stated that the appeal authority might either confirm modify or annul the order under appeal and in the face of statutory prescription allowing for only three above-described options to the appeal authority, no inherent power may remain to be exercised by the appeal authority to set aside the order under appeal and remand the proceedings to the original authority and any doubt in that regard has been clarified by the legislature itself by stating that the appeal authority shall not refer the matter back to the adjudicating authority.
It was concluded by the court that, no other issue is required to be adjudicated at this stage and once the appeal authority is seen to have failed to exercise its jurisdiction in accordance with law, such an order may never be sustained.
The decision of the Court:
The court allowed the petition, set aside the impugned order and remanded the matter to the appeal authority to pass a fresh order after hearing the parties afresh.
Case Title: M/S Kronos Solutions India Private Limited vs. Union Of India and Ors.
Coram: Hon’ble Mr. Justice Prashant Kumar
Case No.: WRIT TAX No. - 1417 of 2023
Advocate for the Petitioner: Mr. Vinayak Mithal
Advocate for the Respondent: A.S.G.I., Anant Kumar Tiwari, Gaurav Mahajan
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