Green Fizz Beverages Private ... vs State Of West Bengal & Ors
2022 Latest Caselaw 7461 Cal

Item No.5.
             IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                          CIVIL APPELLATE JURISDICTION
                                 APPELLATE SIDE

                                HEARD ON: 10.11.2022

                              DELIVERED ON:10.11.2022

                                     CORAM:

                THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                       AND
          THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA


                               M.A.T No.1364 of 2022
                                        With
                               I.A. No.CAN 1 of 2022

                     Green Fizz Beverages Private Limited.
                                      Vs.
                          State of West Bengal & Ors.


Appearance:-
Mr. Srijib Chakraborty,
Mr. Suryaneel Das
Mr. Aditya Mondal                               .....    for the appellant

Mr. Anirban Ray, ld. G. P.,
Mr. Debasish Ghosh,
Mr. D. Sahu                                     ...... for the State.


                                    JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. Affidavit-of-service filed in Court today be taken on

record.

2. This intra court appeal by the writ petitioner is directed

against the order dated 18th July, 2022 in W.P.A. 15484 of 2022.

The writ petition was filed by the appellant challenging an

order passed by the appellate authority, namely, Senior Joint

Commissioner of State Tax Appeals, Central Section, Kolkata and

Bureau of Investigation, Unit - II dated 21st December, 2018.

The learned Single Bench dismissed the writ petition on the

ground that the writ petition was filed after a period of 3 and

½ years. The explanation given by the appellant is that as

against the order passed by the appellate authority, the

appellant has a remedy of filing an appeal before the GST

Tribunal, which is yet to be constituted in the State of West

Bengal. The appellant, therefore, would contend that the

limitation would start to run only after a notification is

issued constituting the Tribunal.

3. We are not persuaded to accept the said submission.

However, we are also not able to convince ourselves with regard

to the conclusion arrived at by the learned Single Bench in

dismissing the writ petition solely on the ground of delay of 3

and ½ years. We are convinced to say so that the dispute is a

classification dispute as to whether the product manufactured

and marketed by the appellant is a carbonated beverage with

fruit juice or a carbonated beverage.

4. The issue being a recurrent issue and the Tribunal being

the last fact finding authority, in our view, the appellate

remedy before the Tribunal is not only efficacious but an

effective remedy as well. Since the Tribunal is yet to be

constituted, the appellant having left with no other remedy is

compelled to approach this Court invoking its jurisdiction under

Article 226 of the Constitution of India.

5. Delay and laches are not to be calculated solely by the

length of the time taken by the party to approach the legal

forum. It is elementary principle that none stands to benefit

by lodging an appeal or a petition belatedly. Unless and until

there are material to show that owing to mala fide intentions

and with certain ulterior motive, the petition was belated

filed. We find that there is no such allegation against the

appellant. That apart, we also note that the appellant had

deposited 10% of the disputed tax while filing an appeal before

the first appellate authority and had the Tribunal been

constituted and the appellant had filed an appeal before the

Tribunal, it would have deposited further 20% of the disputed

tax.

6. As mentioned above, the dispute being one of classification

of goods manufactured and marketed by the appellant, an

adjudication is required to be done for which unless the

respondents file their affidavit, the Court will not be in a

position to give a binding decision.

7. Thus, considering the peculiar facts and circumstances of

the case, this Court is of the view that the writ petition

should be heard and decided on merits rather being rejected on

the ground of delay and laches. However, to be entitled to such

benefit, the appellant is put on certain conditions.

8. In the result, the appeal is allowed and the writ petition

is restored to the file of this Court with a direction to the

appellant to pay 20% of the balance disputed tax within a period

of six weeks from the date of receipt of the server copy of this

judgment and order and also furnish a bond to the satisfaction

of the appropriate authority for the balance amount of the

disputed tax.

9. If the above two conditions are complied with, the

appellant will be entitled to be heard in the writ petition for

which an affidavit-in-opposition is directed to be filed by the

appropriate respondent within a period of 12 weeks from the date

on which the appellant complies with the aforementioned

conditions.

10. If the aforementioned conditions are complied with, no

coercive action can be taken against the appellant for recovery

of balance amount of tax, penalty and cess.

11. It is made clear that we have not gone into the merits of

the matter while deciding this appeal.

12. There shall be no order as to costs.

13. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(T.S. SIVAGNANAM, J)

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)