Karnataka High Court
Slm Stationery vs Union Of India on 5 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 08.01.2025
Pronounced on : 05.03.2025
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.100038 OF 2025 (T-RES)
BETWEEN:
SLM STATIONERY
BUILDING NO. 22/175
KARUKATHIRUTHY, MARANCHERI
MALAPPURAM, KERALA - 679 584.
THROUGH ITS PROPRIETOR
MR. ABDUL SALAM
S/O KUNJIMARAKKAR
AGED ABOUT 45 YEARS
RESIDENT OF POUNKKATTIL HOUSE
KANHIRAMUKKU, MARANCHERI
MALAPPURAM, KERALA - 679 584.
... PETITIONER
(BY SRI SAMEER GUPTA, ADVOCATE FOR
SMT. GAYATRI S. R., ADVOCATE)
AND:
1. UNION OF INDIA
THROUGH ITS SECRETARY
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
2
DEPARTMENT OF REVENUE
NORTH BLOCK, NEW DELHI - 110 001.
2. THE GOODS AND SERVICES TAX COUNCIL
OFFICE OF THE GST COUNCIL SECRETARIAT
5TH FLOOR, TOWER II
JEEVAN BHARTI BUILDING
JANPATH ROAD, CONNAUGHT PLACE
NEW DELHI - 110 001.
3. JOINT COMMISSIONER OF COMMERCIAL TAXES
(ENFORCEMENT), N.Z.BELAGAVI
SUMOULYA SOUDHA CLUB ROAD
BELAGAVI - 590 001.
4. COMMERCIAL TAX OFFICER (ENFORCEMENT)- 2
AFZALPUR, TAKKE, VIJAYAPUR - 586 101.
... RESPONDENTS
(BY SRI GANGADHAR J. M., AAG A/W.,
SRI SHARAD V.MAGADUM, AGA FOR R1;
SRI GIRISH S.HULMANI, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING
THE IMPUGNED ORDER FOR EXTENSION OF PHYSICAL
VERIFICATION FORM GST MOV-03 (ANNEXURE-A) DATED
25.11.2024 BEARING NO. PA/PR-01/49/2024-25/B WHICH HAS
BEEN PASSED BY THE RESPONDENT NO.3 WITHOUT JURISDICTION
ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.02.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, a proprietorship concern is at the doors of this
Court calling in question orders dated 25.11.2024 and 30.11.2024,
both passed by the third respondent seeking extension of time for
physical verification; a confiscation order dated 24.12.2024, passed
by the fourth respondent; a consequent direction against the
impugned auction notice of the confiscating material, all of which
are issued on the score that they are without jurisdiction and a
consequential mandamus is also sought for release of goods and
vehicle without any condition.
2. Shorn of unnecessary details, facts in brief, germane, are
as follows:
The petitioner is said to be the owner of certain goods -
Arecanut, in the case at hand, which were to be supplied to one
Pooja enterprises and it being transported, in a vehicle bearing
registration No.KA-63, 3260. It is the case of the petitioner that
prior to the movement of the goods as aforesaid, the petitioner has
generated an invoice and handed over to the driver of the said
vehicle but the e-way bill could not be generated due to network
issues. The consignment and vehicle were intercepted by the
fourth respondent - Commercial Tax Officer, (Enforcement -2),
Vijayapura, an officer under the Karnataka Goods and Services Tax
Act, 2017. The statement of the driver of the vehicle was recorded
on 19.11.2024 and on the same day, an order for physical
verification is passed by the fourth respondent, on the ground that
the existence of the consignor and consignee, genuineness of the
documents of the goods in transit, genuineness of the transactions
within the consignor and consignee are suspicious, and would need
further verification.
3. It is the claim of the petitioner that he visited the fourth
respondent, tendered all necessary documents and requested for
release of the goods and the conveyance and he had no intention to
evade tax. The oral representation of the petitioner was not
considered and on 25.11.2024, the third respondent - Joint
Commissioner of Commercial Taxes, Enforcement Wing, Belagavi,
passes an order extending the time limit for physical verification
only on the score that the authorized person did not appear to
conduct physical verification, which is disputed by the petitioner.
On 26.11.2024, summons is issued under Section 70 of the Central
Goods and Services Tax Act, 2017/ KGST, directing the petitioner to
appear before him on 28.11.2024. In compliance of the summons,
the petitioner appeared before the fourth respondent on
04.12.2024 and tendered his statement under Section 70 of the
KGST read with Section 6 of the CGST and Section 20 of the
Integrated Goods and Services Tax Act, 2017 and stated that the
goods in question belonged to him and they were being transported
to a buyer in Delhi.
4. Fourth respondent is said to have carried out physical
verification on 04.12.2024, 14 days after the date of interception
and then passes an order of detention of the goods on the ground
that prima facie, the documents tendered were found to be
defective apart from its genuineness of the transaction itself being
in doubt. A show cause notice comes to be issued on 10.12.2024,
seeking to show cause as to why the goods found in the vehicle
should not be confiscated. The petitioner replies to the said notice
on 16.12.2024. Not being convinced with the reply, the confiscation
order is passed on 24.12.2024 and an auction notice, to auction the
goods so confiscated is passed on 02.01.2025. Aggrieved by all the
aforesaid orders, the petitioner is before this Court in the subject
petition.
5. Heard Sri Sameer Gupta, learned counsel for Smt. Gayatri
S.R., learned counsel for the petitioner, Sri Gangadhar J.M., learned
Additional Advocate General along with Sri Sharad V. Magadum,
learned Additional Government Advocate for respondent No.1 and
Sri Girish S. Hulmani, learned counsel for respondent No.2.
SUBMISSIONS:
PETITIONER'S:
6. The learned counsel for the petitioner would vehemently
contend that the fourth respondent is not the proper officer in
terms of Section 4 of the IGST, as there is no notification issued
specifically authorizing the fourth respondent to be the proper
officer. It is his submission that in the absence of such
authorization, the act of the fourth respondent becomes without
jurisdiction. It is his further submission that it is for the
Government of India to notify such authorization in a manner
known to law. Therefore, if the fourth respondent is not the proper
officer as obtaining under Section 4 of the IGST, all his actions are
non est in the eye of law. He would place reliance upon the
judgment of the High Court of Madras rendered in the case of TVL.
VARDHAN INFRASTRUCTURES VS. HEAD OF THE GST,
COUNCIL SECRETARIAT reported in (2024) 125 GSTR 334,
with regard to cross empowerment. It is the further submission
that the fourth respondent is only authorized or a proper officer
under Section 6 of the CGST and KGST and not under Section 4 of
the IGST.
RESPONDENT - STATE:
7. Per contra, learned Additional Advocate General -
Sri Gangadhar J.M., would vehemently refute the submissions to
contend that there is no necessity to issue a notification under
Section 4 of the IGST. The cross empowerment under Section 6 of
the CGST and KGST would ipso facto become applicable to the IGST
and the fourth respondent is an authorised and proper officer. He
would submit that the petition be dismissed as dehors the question
of jurisdiction, the petitioner in the case a hand has alternative
remedy in terms of Section 107 of the CGST Act.
8. Therefore, the matter was heard and reserved only for a
decision with regard to the jurisdiction of the fourth respondent
acting as a proper officer under IGST.
9. I have given my anxious consideration to the submissions
made by the learned counsel for the respective parties and have
perused, the material on record.
10. The afore-narrated facts, link in the chain of events and
dates are all matter of record, they would not require any
reiteration. Since the matter is reserved for determination whether
the fourth respondent would be the proper officer or not, I deem it
appropriate to notice the statutory frame work and interpretation
on the said statutory frame work.
11. Three enactments form the fulcrum of the lis, they are,
the Central Goods and Services Tax Act, 2017 ('CGST' for
short), the Karnataka Goods and Services Tax Act, 2017
('KGST' for short) and the Integrated Goods and Services Tax
Act, 2017 ('IGST' for short). Certain provisions of the afore-
quoted statutes are necessary to be noticed. Section 6 of the CGST
deals with authorization of officers of State tax or Union territory
tax as proper officer in certain circumstances. It reads as follows:
"6. Authorisation of officers of State tax or Union
territory tax as proper officer in certain
circumstances.--(1) Without prejudice to the provisions of
this Act, the officers appointed under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act are authorised to be the proper
officers for the purposes of this Act, subject to such
conditions as the Government shall, on the
recommendations of the Council, by notification,
specify.
(2) Subject to the conditions specified in the
notification issued under sub-section (1),--
(a) where any proper officer issues an order under this
Act, he shall also issue an order under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act, as authorised by the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act, as the case may be, under intimation
to the jurisdictional officer of State tax or Union
territory tax;
(b) where a proper officer under the State Goods and
Services Tax Act or the Union Territory Goods and
Services Tax Act has initiated any proceedings on a
subject matter, no proceedings shall be initiated by the
proper officer under this Act on the same subject
matter.
(3) Any proceedings for rectification, appeal and
revision, wherever applicable, of any order passed by an
officer appointed under this Act shall not lie before an officer
appointed under the State Goods and Services Tax Act or the
Union Territory Goods and Services Tax Act."
(Emphasis supplied)
12. Likewise, Section 6 of the KGST which also deals with an
identical circumstance reads as follows:
"6. Authorisation of officers of central tax as
proper officer in certain circumstances.--(1) Without
prejudice to the provisions of this Act, the officers
appointed under the Central Goods and Services Tax
Act are authorised to be the proper officers for the
purposes of this Act, subject to such conditions as the
Government shall, on the recommendations of the
Council, by notification, specify.
(2) Subject to the conditions specified in the
notification issued under sub-section (1),--
(a) where any proper officer issues an order under this Act,
he shall also issue an order under the Central Goods
and Services Tax Act, as authorised by the said Act
under intimation to the jurisdictional officer of central
tax;
(b) where a proper officer under the Central Goods and
Services Tax Act has initiated any proceedings on a
subject matter, no proceedings shall be initiated by the
proper officer under this Act on the same subject
matter.
(3) Any proceedings for rectification, appeal and
revision, wherever applicable, of any order passed by an
officer appointed under this Act, shall not lie before an officer
appointed under the Central Goods and Services Tax Act."
(Emphasis supplied)
Therefore, Section 6 in both the Central and State
enactments deal with officer of the CGST or the KGST to be the
proper officer in certain circumstances, subject to the conditions
stipulated in Section 6 of both the Central and State enactments.
13. The third enactment is the IGST. Section 4 of the IGST
which is germane to be noticed reads as follows:
"4. Authorisation of officers of State tax or Union
territory tax as proper officer in certain
circumstances.--Without prejudice to the provisions of this
Act, the officers appointed under the State Goods and
Services Tax Act or the Union Territory Goods and
Services Tax Act are authorised to be the proper
officers for the purposes of this Act, subject to such
exceptions and conditions as the Government shall, on
the recommendations of the Council, by notification,
specify."
(Emphasis supplied)
Section 4 of the IGST deals with authorisation of officers appointed
under the State Tax Act or Union Territory Tax Act as proper officer
in certain circumstances. Section 4 of the IGST unequivocally
mandates that the officer appointed under the KSGT or the Union
Territory are authorised to be the proper officer for the purpose of
IGST, subject to exceptions and conditions as the government shall
on the recommendation of the Council, would specify by issuance of
a notification.
14. It is an admitted fact that there is no notification issued
by the Government of India specifying persons other than the
officers who are found in Section 4 of the IGST. Section 4 of the
IGST is unequivocal. The officers under Section 6 of the CGST or
KGST are authorised to be the proper officers for the purposes of
the IGST. The exceptions are to be notified by the Government of
India, on consultation or on the recommendation of the Council.
Therefore, a notification or recommendation should ensue only
when the government wants to carve out exceptions to the
definition of 'proper officer' under Section 4 of the IGST. The
normal rule is that, the officers appointed under the CGST or
KGST to be the proper officers under Section 4 of the IGST.
There cannot be any other interpretation to Section 4 of the IGST.
As the provisions of the IGST, envisages a cross empowerment and
not an exception that is required by issuance of a notification.
15. The learned counsel for the petitioner has placed heavy
reliance upon the judgment of the High Court of Madras in the case
of TVL VARDHAN supra. The said judgment would not be
applicable to the facts obtaining the case at hand as the judgment
is dealt with a different set of circumstance.
16. It is now germane to notice the interpretation of Section 4
of the IGST and the cross empowerment that it envisages. A
division bench of the High Court of Punjab and Haryana in the case
of SODHI CARGO MOVERS (P) LTD. V. STATE OF HARYANA
AND OTHERS1 interpreting Section 4 of the IGST has held as
follows:
".... ..... ....
9. Pursuant to 10st Amendment of the Constitution
three enactments were passed by the Parliament i.e. the
Integrated Goods and Services Tax Act, 2017, the Central
Goods and Services Tax Act, 2017, the Union Territory Goods
and Services Tax Act, 2017. In addition to the aforesaid
three enactments, the legislature of the State of Haryana on
8-6-2017 passed an enactment known as the Haryana Goods
and Services Tax Act, 2017 ("the HGST Act"). In matters of
inter-State trade and commerce, including import into the
territory of India and out of it, the IGST Act, 2017 applies,
whereas in matters of intra-State trade and commerce "the
CGST Act, 2017" and the State Goods Services Tax Act
apply.
10. Reference was made to the pronouncement of the
Hon'ble High Court of Madhya Pradesh in Advantage India
Logistics (P) Ltd. v. Union of India [Advantage India Logistics
(P) Ltd. v. Union of India, (2018) 58 GSTR 247 : 2018 SCC
OnLine MP 1822] dated 23-8-2018 and the Hon'ble Allahabad
1 2023 SCC OnLine P&H 3949
High Court in Satyendra Goods Transport Corp. v. State of
U.P. [Satyendra Goods Transport Corp. v. State of U.P.,
(2018) 54 GSTR 3 : 2018 SCC OnLine All 6079]
11. The abovesaid two judgments are on the
proposition that cross-empowerment under Section 4
of the IGST Act, 2017 and Section 6 of the CGST Act,
2017 means that State authorities are empowered
under the HGST Act, 2017 can also enforce the
provisions of the CGST Act, 2017 or the IGST Act,
2017."
(Emphasis supplied)
In the afore-quoted judgment, the division bench holds that Section
4 of the IGST would mean that the State authorities who are
empowered under the HGST Act therein and can also enforce the
provisions of the CGST and IGST. If the words in the HGST Act is
paraphrased to the case at hand, which is the KGST, the same
principle would become applicable.
17. A division bench of the High Court of Madhya Pradesh
interpreting Section 4 of the IGST in the case of ADVANTAGE
INDIA LOGISTICS PVT. LTD. V. UNION OF INDIA AND
OTHERS2, has held as follows:
".... ..... ....
4. The sole contention of the learned counsel for the
petitioner is that in absence of any notification
2 (2018) 58 GSTR 247
under Section 4 of IGST Act, 2017, the respondent
No.4 is not competent to issue show cause notice and
the impugned seizure memo dated 15.07.2018 is
wholly without jurisdiction.
5. The IGST Act, 2017 deals with taxability of inter-State
supply of goods and services. Section 4 of the IGST Act
reads as under :
"4. Without prejudice to the provisions of this Act, the
officers appointed under the State Goods and Services tax
Act or the Union Territory Goods and Services tax Act are
authorised to be the proper officers for the purposes of this
Act, subject to such exceptions and conditions as the
Government shall, on the recommendations of the council,
by notification, specify."
6. From perusal of the aforesaid, it is clear that the
officers appointed under the MPGST Act, 2017 was
authorized to be proper officers for the purposes of the IGST
Act.
7. At present, no notification was issued by the Central
Government under section 4 of the IGST Act. By order dated
October 12,2017, respondent No. 4 was authorized as proper
officer and was bestowed with powers such as inspection,
search and seizure under section 68 of the MPGST Act. Serial
Nos. 31 and 57 of the order dated October 12, 2017
(annexure-R/1) reads as under :
Sl. Section Functions assigned Designation of proper
No. officer
31 68(3) To intercept any Deputy Commissioner of
conveyance to State Tax, Assistant
inspect Commissioner of State
documents, Tax, State Tax Officer,
devices and goods Inspector of State Tax,
Taxation Assistant.
57 129(3) To issue notice and Deputy Commissioner of
pass an order in tax State Tax, Assistant
and penalty of relation Commissioner of State
to seized goods Tax, State Tax Officer.
8. Section 20 of the IGST Act provides for the provisions
of the Central Goods and Services tax Act (in short, "the
CGST") relating to inspection, search, seizure, etc. Section
68 of the MPGST Act provides the powers of inspection,
search and seizure of goods in movement. Section 129 of the
MPGST Act provides the power in respect of detention,
seizure and release of goods and conveyance in transaction.
9. In the present case, it is an admitted position that the
subject vehicle was transporting goods for inter-State supply
of goods from Gurgaon, Haryana to Pune, Maharashtra. As
per e-way bill system (annexure P/4), the number of vehicle
was mentioned as HR-38-0823 whereas, the correct vehicle
number is HR-38-X-0823. It was found by respondent No. 4
that the e-way bill was defective and not updated, therefore,
show cause notice was issued on July 13, 2018 to inspect the
subject vehicle on July 15, 2018. On inspection, respondent
No. 4 in exercise of powers under section 129(1) of the
MPGST Act passed the seizure order (annexure-P/1) on July
15, 2018.
10. Respondent No. 4 in compliance of the statutory
mandate under section 129(6) has passed a final order dated
July 23, 2018 directing the petitioner to pay an amount of
Rs. 4,20,266 (minimum) as tax and penalty in terms of
section 129(3) of the MPGST Act.
11. Against the aforesaid final order dated July 23, 2018,
statutory appeal under section 109 of the Act has been
provided.
12. The learned counsel for the petitioner has drawn our
attention to articles 246A and 269A of the Constitution which
was brought by One Hundred and First (101) Amendment on
September 8, 2016 and submitted that Parliament has
exclusive power to make laws with respect to goods and
services tax where the supply of goods, or of services, or
both takes place in the course of inter-State trade or
commerce. As no notification has been issued under section
4 of the IGST Act and, therefore, respondent No. 4 was not
competent to pass any order and, therefore, the petitioner
without availing the statutory remedy has filed this writ
petition. He has also drawn our attention to the notification
dated October 13, 2017 issued by the Government of India,
Ministry of Finance in respect of refund under section 20 of
the IGST Act and submitted that similar type of notification is
required and prayed for its quashment.
13. On due consideration of the arguments of the
learned counsel for the parties so also the provisions
of section 4 of the IGST Act, we are of the view that
officers appointed under the MPGST Act are authorized
to be proper officers for the purpose of IGST and,
therefore, the contention of the petitioner that no
notification was issued and in absence of any
notification under section 4 of the IGST Act has no
force, we cannot accept the contention of the
petitioner that the action of respondent No. 4 is wholly
without jurisdiction."
(Emphasis supplied)
The division bench of the High Court of Madhya Pradesh holds
that the officers appointed under the MPGST are authorised to be
the proper officers for the purpose of the IGST. Therefore, the
contention that the officer appointed under the MPGST is not a
proper officer and has no jurisdiction was declined to be accepted.
18. Yet another division bench of the High Court of Punjab
and Haryana dealing with identical circumstance of seizure,
confiscation of goods and answering the very contention that the
officer appointed under the State Tax Act therein, to be the proper
officer for the purpose of the IGST and interpreting Section 4 of the
IGST in the case of BRIGHT ROAD LOGISTICS V. STATE3, has
held as follows:
"... ..... ....
11. The following questions require consideration in
the present case :
"1. Whether the Assistant Excise and Taxation
Officer (Enf.) Gurugram was a 'Proper Officer' and
was authorized to inspect and detain the vehicle
which was carrying goods for inter-State
transportation from Tamil Nadu to Delhi and was
further authorized to pass an order under sections
129 and 130 of the GST Act, 2017 read with
provisions of the IGST Act, 2017 ?
2. Whether the impugned order dated November 26,
2018 (annexure P-1) is liable to be quashed ?"
Question No.1
12. The appellate authority while passing the
impugned order (annexure P-1) has dealt with a preliminary
objection by discussing the history of new direct taxation
regime including the applicability of IGST Act, 2017 for inter-
State trade and commerce and held that in view of the
provisions of section 4 of the IGST Act, 2017 and section 6 of
the GST Act, 2017, the State authorities are empowered
3 2023 SCC ONLINE P&H 4242
under the HGST Act, 2017 and they can also enforce the
provisions of the CGST Act, 2017 and the IGST Act, 2017.
13. In the written statement, the respondents have
taken a specific stand in a reply to para Nos. 32(xvi) and
(xvii) that AETO (Enf.)-cum-proper officer of State Tax is
duly empowered to check the goods and vehicle in inter-
State transactions as per the provisions of section 6(1) of the
CGST Act, 2017 and as per powers delegated under section 4
of the IGST Act, 2017. It has also been submitted in the
written statement that cross-empowerment and delegation of
powers to State Tax Officers appointed under MPGST Act has
been upheld as per the decision dated August 27, 2018 by
the High Court of Madhya Pradesh Bench at Indore in Writ
Petition No. 16266/2018 in the matter of Advantage India
Logistic Pvt. Ltd. v. Union of India.
14. We have considered the observations made by the
appellate authority in view of the provisions of IGST Act,
2017, CGST Act, 2017, the Haryana Goods and Services Tax
Act, 2017 (for short, "the HGST Act, 2017") and the various
notifications and orders made by the Government of India,
Ministry of Finance.
15. The preamble of the IGST Act, 2017 clearly
specify the applicability of the said Act provides for levy and
collection of tax for inter-State supply of goods. The
preamble reads as under :
"An Act to make a provision for levy and
collection of tax on inter- State supply of goods or
services or both by the Central Government and for
matters connected therewith or incidental thereto."
16. The CGST Act, 2017 makes provisions for levy and
collection of the tax for intra-State supply of goods. The
preamble of the said Act makes it clear which reads as
follow:
"An Act to make a provision for levy and
collection of tax on intra- State supply of goods or
services or both by the Central Government and for
matters connected therewith or incidental thereto".
17. Section 20 of the IGST Act, 2017 provides that the
provisions of CGST Act, 2017 relating to various matters
including inspection, search, seizure and arrest, etc., are
applicable to the IGST Act, 2017 subject to the provisions of
CGST, 2017. The same reads as under :
"20. Application of provisions of Central Goods
and Services Tax Act.--Subject to the provisions of
this Act and the rules made thereunder, the provisions
of Central Goods and Services Tax Act relating to,
(i) scope of supply ;
(ii) composite supply and mixed supply ;
(iii) time and value of supply ;
(iv) input-tax credit ;
(v) registration ;
(vi) tax invoice, credit and debit notes ;
(vii) accounts and records ;
(viii) returns, other than late fee ;
(ix) payment of tax ;
(x) tax deduction at source ;
(xi) collection of tax at source ;
(xii) assessment ;
(xiii) refunds ;
(xiv) audit ;
(xv) inspection, search, seizure and arrest ;
(xvi) demands and recovery ;
(xvii) liability to pay in certain cases ;
(xviii) advance ruling ;
(xix) appeals and revision ;
(xx) presumption as to documents ;
(xxi) offences and penalties ;
(xxii) job work ;
(xxiii) electronic commerce ;
(xxiv) transitional provisions ; and
(xxv) miscellaneous provisions including the
provisions relating to the imposition of interest and
penalty,
shall, mutatis mutandis, apply, so far as may
be, in relation to integrated tax as they apply in
relation to Central tax as if they are enacted under this
Act :
Provided that in the case of tax deducted at
source, the deductor shall deduct tax at the rate of
two per cent. from the payment made or credited to
the supplier :
Provided further that in the case of tax collected
at source, the operator shall collect tax at such rate
not exceeding two per cent., as may be notified on the
recommendations of the Council, of the net value of
taxable supplies :
Provided also that for the purposes of this Act,
the value of a supply shall include any taxes, duties,
cesses, fees and charges levied under any law for the
time being in force other than this Act, and the Goods
and Services Tax (Compensation to States) Act, if
charged separately by the supplier :
Provided also that in cases where the penalty is
leviable under the Central Goods and Services Tax Act
and the State Goods and Services Tax Act or the Union
Territory Goods and Services Tax Act, the penalty
leviable under this Act shall be the sum total of the
said penalties :
Provided also that where the appeal is to be
filed before the appellate authority or the Appellate
Tribunal, the maximum amount payable shall be fifty
crore rupees and one hundred crore rupees
respectively."
18. Since the vehicle was transporting the goods
inter-State, therefore, the provisions of the IGST Act, 2017
as well the provisions of the GST Act, 2017 in so far
applicable in view of the provisions of section 20 of the IGST
Act, are applicable to the facts of the present case. In view
of the said enabling provisions under section 20 of the
IGST Act, 2017, the provisions of Chapter XIV of the
GST Act, 2017 which deals with inspection, search,
seizure and arrest and power of inspection, search and
seizure (section 67 and 68 of the CGST Act, 2017) are
applicable to the inter-State supply of goods.
19. As per the provisions of section 4 of the IGST Act,
2017, the officers who are appointed under the State Goods
and Services Tax Act or Union Territory Goods and Services
Tax Act are authorized to be the proper officers in the
process of the IGST Act, 2017. The said section is
reproduced as under :
"4. Authorization of officers of State tax or
Union territory tax as proper officer in certain
circumstances.--Without prejudice to the provisions of
this Act, the officers appointed under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act are authorized to be the proper
officers for the purposes of this Act, subject to such
exceptions and conditions as the Government shall, on
the recommendations of the Council, by notification,
specify."
20. Apart from the enabling provisions under the IGST
Act, 2017, the Commissioner of State Tax, Haryana had
issued the order dated December 7, 2017 (annexure P-46)
exercising the powers conferred under sub-section (1) of
section 5 read with clause (91) of section 2 of the Haryana
Goods and Services Tax Act, 2017 assigning the functions to
be performed under the said Act by a Proper Officer. As per
entry of Sl. Nos. 51, 52 and 53 of the said order, the
Assistant Excise and Taxation Officer of State Tax has been
assigned the functions to be performed under section 129(1)
and (3) ; 129(6) ; and section 130 of the Haryana Goods and
Services Tax Act, 2017. Sections 129 and 130 of the said Act
is having the similar provisions as under the said sections of
the IGST Act, 2017.
21. As such, in view of the enabling provisions of
sections 20 and section 4 of the IGST Act ; as well as
the order dated December 7, 2017 (annexure P-46)
passed by the Excise and Taxation Commissioner,
Haryana, assigning the functions to the proper officer
under the Haryana Goods and Services Tax Act, 2017,
we are of the considered opinion that the Assistant.
Excise and Taxation Officer of State Tax is competent
and authorized to exercise the powers under sections
129 and 130 of the IGST Act, 2017.
22. As such the first point for determination is
accordingly, answered that the Assistant Excise and
Taxation Officer of State Tax was authorized to Act as
a proper officer and was having the authority to act
under sections 129 and 130 of the IGST Act. The
decision of the appellate authority in this regard
requires no interference.
(Emphasis supplied)
19. A division bench of the High Court of Orissa, at Cuttack,
interpreting Section 4 of the IGST in the case of NARAYAN SAHU
VS. UNION OF INDIA AND OTHERS4, holds as follows:
"..... ..... .....
6. Provision in section 4 of IGST Act is cross
authorization, inter alia, of officers of State Tax. Before us
there is no dispute that there has been aforesaid notifications
for appointment of proper officers and assignment of powers
and duties to them as officers of State Tax. For purposes of
the IGST Act, the empowering cross authorization
provision says that inter alia, officers of State Tax are
authorized to be proper officers for the purposes of
that Act. The authorization is subject to such
exceptions and conditions as the Government shall, on
the recommendations of the Council, by notification
4 W.P.(C)28012/2024, disposed on 26.11.2024
specify. It is clear that there has been no notification
limiting authority of cross authorized officers by way
of exception or condition. In the circumstances, the
appointment and powers of officers of State Tax, as
proper officers will, under the cross authorization
provision, empower them to correspondingly act under
the IGST Act."
(Emphasis supplied)
The division bench in the afore-quoted judgment holds that Section
4 of the IGST authorizes cross empowerment inter alia of the
officers under the State Tax Act or the Central Tax Act.
20. A division bench of the High Court of Kerala in the case of
PINNACLE VEHICLES AND SERVICES PRIVATE LIMITED v. JOINT
COMMISSIONER5, has held as follows:
4. The learned Single Judge, who considered the writ
petition at first instance, in his reference order dated
07.11.2024, expressed the following prima facie view in the
matter:
"4. Having heard the learned counsel for the
petitioner and the learned Senior Government Pleader, I
am prima facie of the view that the petitioner has not made
out any case for interference with Ext.P4 show cause notice
on the ground that it is issued without jurisdiction on
account of the fact that there is no notification issued under
the provisions of Section 6(1) of the CGST Act empowering
the officers of the State Goods and Services Tax Act to issue
such a show cause notice. Section 6(1) of the CGST Act
reads as follows:
5 2025 SCC OnLine Ker 231
Section 6. Authorisation of officers of State tax or
Union territory tax as proper officer in certain
circumstances.
(1) Without prejudice to the provisions of this Act,
the officers appointed under the State Goods and Services
Tax Act or the Union Territory Goods and Services Tax Act
are authorised to be the proper officers for the purposes of
this Act, subject to such conditions as the Government
shall, on the recommendations of the Council, by
notification, specify.
(2) Subject to the conditions specified in the
notification issued under sub-section (1),--
(a) where any proper officer issues an order under
this Act, he shall also issue an order under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act, as authorised by the State Goods and
Services Tax Act or the Union Territory Goods and Services
Tax Act, as the case may be, under intimation to the
jurisdictional officer of State tax or Union territory tax;
(b) where a proper officer under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act has initiated any proceedings on a subject
matter, no proceedings shall be initiated by the proper
officer under this Act on the same subject matter.
(3) Any proceedings for rectification, appeal and
revision, wherever applicable, of any order passed by an
officer appointed under this Act shall not lie before an
officer appointed under the State Goods and Services Tax
Act or the Union Territory Goods and Services Tax Act.
A reading of Section 6(1) of the CGST Act
makes it clear that the officers appointed under the
State Goods and Services Tax Act or the Union
Territory Goods and Services Tax Act are authorised
to be proper officers for the purposes of the Act,
subject to such conditions as the Government shall,
on the recommendations of the Council, by
notification, specify. Unaided by authority, a reading
of the provision suggests to me that by virtue of the
operation of the provision itself, the officers
appointed under the State Goods and Services Tax Act
are proper officers for the purposes of the Central
Goods and Services Tax Act, and it is only when any
restriction or condition has to be placed on the
exercise of power by any officer appointed under the
State Goods and Services Tax Act that a notification
as contemplated by the provisions of Section 6(1) of
the CGST Act has to be issued. Paragraph Nos. 2 to
3.3 of the letter issued by the GST Policy Wing of the
Central Board of Indirect Taxes and Customs as F. No.
CBEC-20/10/07/2019-GST dated 22-06-2020, reads
thus:
"2. Issue raised in the reference is whether
intelligence based enforcement actions initiated by the
Central Tax officers against those taxpayers which are
assigned to the State Tax administration gets covered under
section 6(1) of the CGST Act and the corresponding
provisions of the SGST/UTGST Acts or whether a specific
notification is required to be issued for cross empowerment
on the same lines as notification No. 39/2017-CT dated
13.10.2017 authorizing the State Officers for the purpose or
refunds under section 54 and 55 of the CGST Act.
3.1. The issue has been examined in the light of
relevant legal provisions under the CGST Act, 2017. It is
observed that Section 6 of the CGST Act provides for cross
empowerment of State Tax officers and Central Tax officers
and reads as:-- "6. (1) Without prejudice to the provisions
of this Act, the officers appointed under the State Goods
and Services Tax Act or the Union Territory Goods and
Services Tax Act are authorised to be the proper officers for
the purposes-of this Act, Subject to such conditions as the
Government shall, on the recommendations of the Council,
by Notification specify.
3.2. Thus in terms of sub-section (1) of section 6 of
the CGST Act and sub-section (1) of section 6 of the
respective State GST Acts respective State Tax officers and
the Central Tax officers respectively are authorised to be
the proper officers for the purposes of respective Acts and
no separate notification is required for exercising the said
powers in this case by the Central Tax Officers under the
provisions of the State GST Act. It is noteworthy in this
context that the registered person in GST are registered
under both the CGST Act and the respective SGST/UTGST
Act.
3.3. The confusion seems to be arising from the fact
that, the said sub-section provides for notification by the
Government if such cross empowerment is to be subjected
to conditions. It means that notification would be required
only if any conditions are to be imposed. For example,
Notification No. 39/2017-CT dated 13.10.2017 restricts
powers of the State Tax officers for the purposes of refund
and they have been specified as the proper officers only
under section 54 and 55 of the CGST Act and not under rule
96 of the CGST Rules, 2017 (IGST Refund on exports). If no
notification is issued to impose any condition, it means that
the officers of State and Centre have been appointed as
proper officer for all the purpose of the CGST Act and SGST
Acts".
While the opinion expressed in the communication
referred to above does not deter this Court from taking a
view different from the view expressed therein, as already
noted, I am prima facie of the view that the opinion
expressed in the said communication represents the true
meaning of the provisions of Section 6(1) of the CGST Act.
The Madras High Court in Tvl. Vardhan Infrastracture (Supra)
held thus:
"61. Thus, Section 6(1) of the respective GST
Enactments empowers Government to issue notification on
the recommendation of GST Council for cross-
empowerment. However, no notification has been issued
except under Section 6(1) of the respective GST
Enactments for the purpose of refund although officers from
the Central GST and State GST are proper officers under the
respective GST Enactments.
62. Since, no notifications have been issued for
cross-empowerment with advise of GST Council, except for
the purpose of refund of tax under Chapter-XI of the
respective GST Enactments r/w Chapter X of the respective
GST Rules, impugned proceedings are to be held without
jurisdiction. Consequently, the impugned proceedings are
liable to be interfered in these writ petitions.
63. Thus, if an assessee has been assigned
administratively with the Central Authorities, pursuant to
the decision taken by the GST Council as notified by Circular
No. 01/2017 bearing Reference F. No. 166/Cross-
Empowerment/GSTC/2017 dated 20.09.2017, the State
Authorities have no jurisdiction to interfere with the
assessment proceedings in absence of a corresponding
Notification under Section 6 of the respective GST
Enactments.
64. Similarly, if an assessee has been assigned to
the State Authorities, pursuant to the decision taken by the
GST Council as notified by Circular No. 01/2017 bearing
Reference F. No. 166/Cross-Empowerment/GSTC/2017
dated 20.09.2017, the officers of the Central GST cannot
interfere although they may have such intelligence
regarding the alleged violation of the Acts and Rules by an
assessee.
65. The manner in which the provisions have been
designed are to ensure that there is no cross interference by
the counterparts. Only exception provided is under Section
6 of the respective GST enactment. Therefore, in absence of
a notification for cross-empowerment, the action taken by
the respondents are without jurisdiction. Officers under the
State or Central Tax Administration as the case may be
cannot usurp the power of investigation or adjudication of
an assessee who is not assigned to them.
66. Therefore, the proceedings initiated by the
respondents so far against the respective petitioners by the
Authorities other than the Authority to whom they have
been assigned to are to be held as without jurisdiction.
Therefore, the impugned proceedings warrants
interference".
Since the issue raised in this writ petition will affect
several proceedings, and taking note of the view expressed
by the Madras High Court in Tvl. Vardhan
Infrastructure (Supra), which is contrary to the prima
facie view that I have taken, I am of the opinion that this
issue requires an authoritative pronouncement by a Division
Bench of this Court.
The writ petition is, therefore, adjourned to be heard
by a Division Bench. The Registry shall place the matter
before the Division Bench, if necessary, after obtaining
orders of Hon'ble the Chief Justice."
5. We find ourselves in complete agreement with
the prima facie view taken by the learned Judge
[Justice Gopinath P.] in the reference order. The
provisions of Section 6(1) of the CGST Act make it
abundantly clear that the cross-empowerment of the
Officers of the SGST/UTGST Department to function as
proper officers under the CGST Act is through the
legislative mandate under Section 6(1) of the CGST
Act. It is a mandate and empowerment that is
presently unqualified but expressly made subject to
such conditions as the Government shall, on the
recommendation of the Council, by notification,
specify. In other words, while the statutory mandate
at present is unqualified, it will be qualified in the
event the Government specifies conditions for the
exercise of power under the statutory mandate,
pursuant to the recommendations of the Council. We
cannot persuade ourselves to read the statutory
mandate as one that does not presently bring about a
cross-empowerment but merely envisages such a
situation as and when a notification is issued at some
time in the future.
6. We also find that the view taken by us accords with
the view taken by a Division Bench of the Delhi High Court
in Indo International Tobacco Ltd. v. Additional Director
General, DGGI, [(2022) 97 GSTR 414 (Delhi)], where at
paragraphs 56 to 62, it is held as follows:
"56. Sub-clause (1) of Section 6 of the CGST Act
provides for the cross empowerment of the Officer
appointed under the SGST Act or the UTGST Act as a
'proper officer' for the purpose of the CGST Act. We are
informed that pari materia provisions of cross
empowerment of the Central Tax Officer are contained in
the various SGST Act(s).
57. Sub-section (2)(a) of Section 6 of the CGST Act
provides that where a 'proper officer' issues an order under
the CGST Act, he shall also issue an order under the SGST
Act and the UTGST Act, as the case may be.
58. Sub-section 2(b) of Section 6 of the CGST Act
further states that where the 'proper officer' under the
SGST Act or the UTGST Act has initiated any proceedings on
the subject matter, no proceedings shall be initiated by the
'proper officer' under the CGST Act on the same subject
matter.
59. We are informed that similar provisions in the
reverse are contained in the various SGST Act(s), with the
State Tax Officer being required to pass an order under the
CGST Act while passing an order under the SGST Act, and
being prohibited from initiating any proceedings on the
subject matter on which the Central Tax officer has already
initiated some proceeding.
60. Section 6 of the CGST Act is clearly guided by
the object of providing a common national market of goods
and services and to eliminate the subjection of the
taxpayers to multiple jurisdictions. It aims to provide
protection to the taxpayers against being subjected to
multiple agencies for the same set of transactions, at the
same time empowering the Officers under the CGST Act or
the SGST Act or the UTGST Act to pass a comprehensive
order and take action, keeping in view and extending to the
other Acts. There should, therefore, be only one order
insofar as the tax entity is concerned.
61. To give effect to the above intent, Section
6(2)(b) of the CGST Act states that where the proper officer
under the SGST Act or the UTGST Act has initiated any
proceedings on a subject matter, the Central Tax Officer
shall not initiate proceedings on the same subject matter.
Clearly the intent being that as the State Tax Officer is
empowered to pass an order even under the CGST Act,
there is no occasion for the Central Tax Officer to initiate
parallel proceedings on the same subject matter.
62. As stated hereinabove, Section 6 of the CGST Act
is intended to give the effect of harmonious convergence of
the States and the Union for the same event for taxation."
The Special Leave Petition preferred against the said
judgment has also been dismissed as withdrawn, as is
evident from the order dated 07.11.2022 of the Supreme
Court in SLP (C). No. 5434 of 2022.
Thus, we answer the reference by upholding the view
taken by the learned Single Judge in the reference order for
the reasons stated therein, as supplemented by the reasons
in this judgment. Further, as we find that no other issue
arises for consideration in the writ petition, we also deem it
appropriate to dismiss the writ petition through this
judgment. Needless to say, it will be open to the petitioner
to pursue its statutory remedies against the show cause
notice issued to it by raising all contentions available in law
and thereafter getting the matter adjudicated in terms of
the statutory provisions."
(Emphasis supplied)
The matter was referred to the Division Bench by the learned
single Judge and the Division Bench answering the reference, holds
that Section 6(1) of the CGST cross empowers the officer of the
State GST Act or Union Territory GST Act to function as the proper
officers under the CGST. While so doing, the Division Bench
considers the judgment of the High Court of Madras rendered in
TVL VARDHAN supra, upon which, the learned counsel for
petitioner has placed heavy reliance upon. The Division Bench
takes a contrary view to VARDHAN and chooses to follow the
judgment of the Division Bench of High Court of Delhi in case of
INDO INTERNATIONAL TOBACCO LTD. V. ADDITIONAL
DIRECTOR GENERAL reported in (2022) 97 GSTR 414 (Delhi).
21. On a blend of the enunciation of law by several division
benches of different High Courts, what would unmistakably emerge
is Section 4 of the IGST generates cross empowerment to become a
proper officer, upon an officer who is appointed under Section 6 of
the CGST or KGST. It is an admitted fact that the fourth
respondent is declared to be the proper officer under Section 6 of
the KGST and confers cross empowerment in terms of Section 4 of
the IGST, which unequivocally mandates that the officer under
Section 6 of the KGST would be the proper officer under Section 4
of the IGST and only an exception to the norm requires a separate
notification by the Government of India, or not otherwise. The
Government of India has not issued any notification carving out an
exception declaring someone else to be the proper officer.
22. In that light, the mandate of Section 4 of the IGST runs
and runs for all time to come. There is no substance in the
submissions of the learned counsel for the petitioner that the fourth
respondent is not a proper officer. Since the judgment was
reserved only for the aforesaid determination, the
DETERMINATION is as follows:
The fourth respondent who is an authorized officer
under Section 6 of the KGST, is declared to be the
proper officer under Section 4 of the IGST.
23. The issue now would be, whether the petition could be
entertained before this Court or the petitioner should be left to avail
the statutory remedy available under Section 107 of the KGST.
24. The matter was heard on the issue of whether the remedy
of appeal would be available or otherwise, and reserved the matter
on the said issue of availability of remedy under Section 107 of the
KGST.
25. This Court had reserved the subject petition on
08-01-2025 to determine who would be the proper officer under
Section 4 of the IGST. It was determined that the officer appointed
under Section 6 of the KGST would be the proper officer under
Section 4 of the IGST. Therefore, the jurisdiction, as aforesaid, was
determined against the petitioner who had contended that an
officer under Section 6 of the KGST, unless notified by the
Government of India under IGST, would not become the proper
officer, to initiate proceedings under the IGST. It was opined while
disposing the petition that the petitioner could avail the remedy of
filing an appeal before the Appellate Authority under Section 107 of
the KGST.
26. The learned counsel for the petitioner submitted that
there was no remedy of filing an appeal for the kind of order that is
passed, as there is specific bar under the KGST. Therefore, appeal
neither, under Section 107 of the KGST or Section 20 of the IGST
was submitted to be unavailable to the petitioner. Therefore, the
matter was heard on 24-02-2025 on the issue of whether appeal
would be maintainable in the fact circumstance, before the
Appellate Authority, and the following order was passed:
"This Court had reserved the matter only to answer the
issue qua who would be the appropriate Officer under the IGST.
The answer is that the Officer appointed under Section 6 of the
KGST is held to be the appropriate Officer. Therefore the
question of jurisdiction has gone against the petitioner. The
issue now would be whether the petition would be entertainable
or the petitioner should be relegated to avail of the statutory
remedy of filing appeal before the appellate authority.
Learned counsel Shri Samir Gupta appearing for the
petitioner submits that the appeal available under Section 20 of
the IGST as an appeal against order passed under the IGST, the
present order is passed not by an Officer who is the appropriate
Officer under section 6 of the KGST. Therefore, the appeal
should lie in fact under the KGST under Section 107 of the
KGST. It is the submission of the learned counsel that appeals
cannot be entertained which arise out of IGST. Therefore there
is a quagmire as to who should be the appellate authority in the
fact circumstance. He would seek to place reliance upon the
interim order granted by the High Court of Judicature at
Allahabad on the same lines interpreting Section 6 of the Uttar
Pradesh GST which is in para material with the KGST. Therefore
the matter requires an answer there as well.
Therefore, the matter is reserved for orders on this issue
as well
The respondents are restrained from precipitating the
matter till the next date of hearing.
List the matter on 03.03.2025."
Therefore, the subject order is in continuation of the order dated
20-02-2025. To determine whether the remedy of appeal is
available or otherwise, it becomes germane to notice certain
provisions of the Act and the Rules. The Act and the Rules would
be the CGST Act and Rules, the KGST Act and Rules, the IGST Act
and Rules.
CGST ACT, 2017 KGST ACT, 2017
2. Definitions.--In this Act, unless 2. Definitions.--In this Act, unless
the context otherwise requires,-- the context otherwise requires,-
.... ......
(4) "adjudicating authority" means (4) "adjudicating authority" means
any authority, appointed or authorised any authority, appointed or authorised
to pass any order or decision under this to pass any order or decision under
Act, but does not include the Central this Act, but does not include the
Board of Indirect Taxes and Customs, Commissioner, Revisional Authority,
the Revisional Authority, the Authority the Authority for Advance Ruling, the
for Advance Ruling, the Appellate Appellate Authority for Advance Ruling,
Authority for Advance Ruling, [the the National Appellate Authority for
National Appellate Authority for Advance Ruling, the Appellate
Advance Ruling, 5[the Appellate Authority, the Appellate Tribunal and
Authority, the Appellate Tribunal and the Authority referred to in sub-section
the Authority referred to in sub-section (2) of Section 171;
(2) of Section 171;
..... ......
(8) "Appellate Authority" means an (8) "Appellate Authority" means an
authority appointed or authorised to authority appointed or authorised to
hear appeals as referred to in Section hear appeals as referred to in Section
107; 107;
3. Officers under this Act.--The 3. Officers under this Act.--The
Government shall, by notification, Government shall, by notification,
appoint the following classes of appoint the following classes of
officers for the purposes of this Act, officers for the purposes of this Act,
namely:-- namely:--
(a) Principal Chief Commissioners (a) Commissioner of State
of Central Tax or Principal tax,
Directors General of Central (b) Additional Commissioners
Tax, of State tax,
(b) Chief Commissioners of (c) Joint Commissioners of
Central Tax or Directors State tax,
General of Central Tax, (d) Deputy Commissioners of
(c) Principal Commissioners of State tax,
Central Tax or Principal (e) Assistant Commissioners
Additional Directors General of State tax, and
of Central Tax, (f) any other class of officers
(d) Commissioners of Central Tax as it may deem fit:
or Additional Directors Provided that, the officers
General of Central Tax, appointed under the Karnataka
(e) Additional Commissioners of Value Added Tax Act, 2003
Central Tax or Additional (Karnataka Act 32 of 2004) shall
Directors of Central Tax, be deemed to be the officers
(f) Joint Commissioners of appointed under the provisions
Central Tax or Joint Directors of this Act.
of Central Tax,
(g) Deputy Commissioners of
Central Tax or Deputy
Directors of Central Tax,
(h) Assistant Commissioners of
Central Tax or Assistant
Directors of Central Tax, and
(i) any other class of officers as it
may deem fit:
Provided that the officers
appointed under the Central
Excise Act, 1944(1 of 1944.) shall
be deemed to be the officers
appointed under the provisions of
this Act.
4. Appointment of officers.--(1) 4. Appointment of officers.--(1)
The Board may, in addition to the The Government may, in addition
officers as may be notified by the to the officers as may be notified
Government under Section 3, under Section 3, appoint such
appoint such persons as it may persons as it may think fit to be the
think fit to be the officers under this officers under this Act.
Act. (2) The Commissioner shall
(2) Without prejudice to the have jurisdiction over the whole of
provisions of sub-section (1), the the State and all other officers
Board may, by order, authorise any shall, subject to such conditions as
officer referred to in clauses (a) to may be specified, have jurisdiction
(h) of Section 3 to appoint officers over the whole of the State or over
of central tax below the rank of such local areas as the
Assistant Commissioner of central Commissioner may, by order,
tax for the administration of this specify.
Act.
5. Powers of officers.--(1) 5. Powers of officers.--(1)
Subject to such conditions and Subject to such conditions and
limitations as the Board may limitations as the Commissioner
impose, an officer of central tax may impose, an officer of State tax
may exercise the powers and may exercise the powers and
discharge the duties conferred or discharge the duties conferred or
imposed on him under this Act. imposed on him under this Act.
(2) An officer of central tax may (2) An officer of State tax may
exercise the powers and discharge exercise the powers and discharge
the duties conferred or imposed the duties conferred or imposed
under this Act on any other officer under this Act on any other officer
of central tax who is subordinate to of State tax who is subordinate to
him. him.
(3) The Commissioner may, (3) The Commissioner may,
subject to such conditions and subject to such conditions and
limitations as may be specified in limitations as may be specified in
this behalf by him, delegate his this behalf by him, delegate his
powers to any other officer who is powers to any other officer who is
subordinate to him. subordinate to him.
(4) Notwithstanding anything (4) Notwithstanding anything
contained in this section, an contained in this section, an
Appellate Authority shall not Appellate Authority shall not
exercise the powers and discharge exercise the powers and discharge
the duties conferred or imposed on the duties conferred or imposed on
any other officer of central tax. any other officer of State tax.
6. Authorisation of officers of 6. Authorisation of officers of
State tax or Union territory tax central tax as proper officer in
as proper officer in certain certain circumstances.--(1)
circumstances.--(1) Without Without prejudice to the
prejudice to the provisions of provisions of this Act, the
this Act, the officers appointed officers appointed under the
under the State Goods and Central Goods and Services Tax
Services Tax Act or the Union Act are authorised to be the
Territory Goods and Services proper officers for the purposes
Tax Act are authorised to be the of this Act, subject to such
proper officers for the purposes conditions as the Government
of this Act, subject to such shall, on the recommendations
conditions as the Government of the Council, by notification,
shall, on the recommendations specify.
of the Council, by notification,
specify.
(2) Subject to the conditions (2) Subject to the conditions
specified in the notification specified in the notification
issued under sub-section (1),-- issued under sub-section (1),--
(a) where any proper officer (a) where any proper officer
issues an order under this issues an order under this
Act, he shall also issue an Act, he shall also issue an
order under the State Goods order under the Central
and Services Tax Act or the Goods and Services Tax Act,
Union Territory Goods and as authorised by the said Act
Services Tax Act, as under intimation to the
authorised by the State jurisdictional officer of
Goods and Services Tax Act central tax;
or the Union Territory
Goods and Services Tax Act,
as the case may be, under
intimation to the
jurisdictional officer of
State tax or Union territory
tax;
(b) where a proper officer under the (b) where a proper officer under
State Goods and Services Tax the Central Goods and Services
Act or the Union Territory Tax Act has initiated any
Goods and Services Tax Act proceedings on a subject
has initiated any proceedings matter, no proceedings shall be
on a subject matter, no initiated by the proper officer
proceedings shall be initiated under this Act on the same
by the proper officer under this subject matter.
Act on the same subject
matter.
(3) Any proceedings for (3) Any proceedings for
rectification, appeal and revision, rectification, appeal and revision,
wherever applicable, of any order wherever applicable, of any order
passed by an officer appointed passed by an officer appointed
under this Act shall not lie before an under this Act, shall not lie before
officer appointed under the State an officer appointed under the
Goods and Services Tax Act or the Central Goods and Services Tax
Union Territory Goods and Services Act.
Tax Act.
107. Appeals to Appellate 107. Appeals to Appellate
Authority.--(1) Any person Authority.--(1) Any person
aggrieved by any decision or aggrieved by any decision or
order passed under this Act or order passed under this Act or
the State Goods and Services the Central Goods and Services
Tax Act or the Union Territory Tax Act by an adjudicating
Goods and Services Tax Act by authority may appeal to such
an adjudicating authority may Appellate Authority as may be
appeal to such Appellate prescribed within three months
Authority as may be prescribed from the date on which the said
within three months from the decision or order is
date on which the said decision communicated to such person.
or order is communicated to (2) The Commissioner may,
such person. on his own motion, or upon
(2) The Commissioner may, request from the Commissioner
on his own motion, or upon of central tax, call for and
request from the Commissioner examine the record of any
of State tax or the proceeding in which an
Commissioner of Union territory adjudicating authority has
tax, call for and examine the passed any decision or order
record of any proceedings in under this Act or the Central
which an adjudicating authority Goods and Services Tax Act, for
has passed any decision or the purpose of satisfying
order under this Act or the State himself as to the legality or
Goods and Services Tax Act or propriety of the said decision or
the Union Territory Goods and order and may, by order, direct
Services Tax Act, for the any officer subordinate to him
purpose of satisfying himself as to apply to the Appellate
to the legality or propriety of Authority within six months
the said decision or order and from the date of communication
may, by order, direct any officer of the said decision or order for
subordinate to him to apply to the determination of such
the Appellate Authority within points arising out of the said
six months from the date of decision or order as may be
communication of the said specified by the Commissioner
decision or order for the in his order.
determination of such points
arising out of the said decision
or order as may be specified by
the Commissioner in his order.
(3) Where, in pursuance of an (3) Where, in pursuance of an
order under sub-section (2), the order under sub-section (2), the
authorised officer makes an authorised officer makes an
application to the Appellate application to the Appellate
Authority, such application shall be Authority, such application shall be
dealt with by the Appellate dealt with by the Appellate
Authority as if it were an appeal Authority as if it were an appeal
made against the decision or order made against the decision or order
of the adjudicating authority and of the adjudicating authority and
such authorised officer were an such authorised officer were an
appellant and the provisions of this appellant and the provisions of this
Act relating to appeals shall apply to Act relating to appeals shall apply
such application. to such application.
(4) The Appellate Authority may, (4) The Appellate Authority
if he is satisfied that the appellant may, if he is satisfied that the
was prevented by sufficient cause appellant was prevented by
from presenting the appeal within sufficient cause from presenting the
the aforesaid period of three appeal within the aforesaid period
months or six months, as the case of three months or six months, as
may be, allow it to be presented the case may be, allow it to be
within a further period of one presented within a further period of
month. one month.
(5) Every appeal under this (5) Every appeal under this
section shall be in such form and section shall be in such form and
shall be verified in such manner as shall be verified in such manner as
may be prescribed. may be prescribed.
(6) No appeal shall be filed (6) No appeal shall be filed
under sub-section (1), unless the under sub-section (1), unless the
appellant has paid-- appellant has paid --
(a) in full, such part of the amount (a) in full, such part of the amount
of tax, interest, fine, fee and of tax, interest, fine, fee and
penalty arising from the penalty arising from the
impugned order, as is admitted impugned order, as is admitted
by him; and by him; and
(b) a sum equal to ten per cent of (b) a sum equal to ten per cent. of
the remaining amount of tax in the remaining amount of tax in
dispute arising from the said dispute arising from the said
order, subject to a maximum of order, subject to a maximum of
twenty crore rupees, in relation twenty crore rupees, in relation
to which the appeal has been to which the appeal has been
filed: filed.
Provided that no appeal shall be Provided that no appeal shall
filed against an order under sub- be filed against an order under
section (3) of Section 129, unless a sub-section (3) of Section 129,
sum equal to twenty-five per cent. unless a sum equal to twenty-
of the penalty has been paid by the five per cent. of the penalty has
appellant. been paid by the appellant.
(7) Where the appellant has paid (7) Where the appellant has
the amount under sub-section (6), paid the amount under sub-section
the recovery proceedings for the (6), the recovery proceedings for
balance amount shall be deemed to the balance amount shall be
be stayed. deemed to be stayed.
(8) The Appellate Authority shall (8) The Appellate Authority shall
give an opportunity to the appellant give an opportunity to the appellant
of being heard. of being heard.
(9) The Appellate Authority may, (9) The Appellate Authority
if sufficient cause is shown at any may, if sufficient cause is shown at
stage of hearing of an appeal, grant any stage of hearing of an appeal,
time to the parties or any of them grant time to the parties or any of
and adjourn the hearing of the them and adjourn the hearing of
appeal for reasons to be recorded in the appeal for reasons to be
writing: recorded in writing:
Provided that no such Provided that no such
adjournment shall be granted adjournment shall be granted
more than three times to a party more than three times to a
during hearing of the appeal. party during hearing of the
appeal.
(10) The Appellate Authority
may, at the time of hearing of an (10) The Appellate Authority
appeal, allow an appellant to add may, at the time of hearing of an
any ground of appeal not specified appeal, allow an appellant to add
in the grounds of appeal, if it is any ground of appeal not specified
satisfied that the omission of that in the grounds of appeal, if it is
ground from the grounds of appeal satisfied that the omission of that
was not wilful or unreasonable. ground from the grounds of appeal
was not wilful or unreasonable.
(11) The Appellate Authority (11) The Appellate Authority
shall, after making such further shall, after making such further
inquiry as may be necessary, pass inquiry as may be necessary, pass
such order, as it thinks just and such order, as it thinks just and
proper, confirming, modifying or proper, confirming, modifying or
annulling the decision or order annulling the decision or order
appealed against but shall not refer appealed against but shall not refer
the case back to the adjudicating the case back to the adjudicating
authority that passed the said authority that passed the said
decision or order: decision or order:
Provided that an order Provided that an order
enhancing any fee or penalty or enhancing any fee or penalty or
fine in lieu of confiscation or fine in lieu of confiscation or
confiscating goods of greater confiscating goods of greater
value or reducing the amount of value or reducing the amount of
refund or input tax credit shall refund or input tax credit shall
not be passed unless the not be passed unless the
appellant has been given a appellant has been given a
reasonable opportunity of reasonable opportunity of
showing cause against the showing cause against the
proposed order: proposed order:
Provided further that where the Provided further that where
Appellate Authority is of the opinion the Appellate Authority is of the
that any tax has not been paid or opinion that any tax has not
short-paid or erroneously refunded, been paid or short-paid or
or where input tax credit has been erroneously refunded, or where
wrongly availed or utilised, no order input tax credit has been
requiring the appellant to pay such wrongly availed or utilised, no
tax or input tax credit shall be order requiring the appellant to
passed unless the appellant is given pay such tax or input tax credit
notice to show cause against the shall be passed unless the
proposed order and the order is appellant is given notice to show
passed within the time limit cause against the proposed
specified under Section 73 or order and the order is passed
Section 74 or Section 74-A. within the time limit specified
under Section 73 or Section 74
or Section 74-A.
(12) The order of the Appellate (12) The order of the Appellate
Authority disposing of the appeal Authority disposing of the appeal
shall be in writing and shall state shall be in writing and shall state
the points for determination, the the points for determination, the
decision thereon and the reasons for decision thereon and the reasons
such decision. for such decision.
(13) The Appellate Authority (13) The Appellate Authority
shall, where it is possible to do so, shall, where it is possible to do so,
hear and decide every appeal within hear and decide every appeal
a period of one year from the date within a period of one year from
on which it is filed: the date on which it is filed:
Provided that where the Provided that where the
issuance of order is stayed by an issuance of order is stayed by
order of a court or Tribunal, the an order of a court or Tribunal,
period of such stay shall be the period of such stay shall be
excluded in computing the period excluded in computing the
of one year. period of one year.
(14) On disposal of the appeal, (14) On disposal of the appeal,
the Appellate Authority shall the Appellate Authority shall
communicate the order passed by it communicate the order passed by it
to the appellant, respondent and to to the appellant, respondent and to
the adjudicating authority. the adjudicating authority.
(15) A copy of the order passed (15) A copy of the order passed
by the Appellate Authority shall also by the Appellate Authority shall
be sent to the jurisdictional also be sent to the Commissioner
Commissioner or the authority or the authority designated by him
designated by him in this behalf and in this behalf and the jurisdictional
the jurisdictional Commissioner of Commissioner of central tax or an
authority designated by him in this
State tax or Commissioner of Union behalf.
Territory Tax or an authority
designated by him in this behalf.
(16) Every order passed under
(16) Every order passed under this section shall, subject to the
this section shall, subject to the provisions of Section 108 or Section
provisions of Section 108 or Section 113 or Section 117 or Section 118
113 or Section 117 or Section 118 be final and binding on the parties.
be final and binding on the parties.
121. Non-appealable decisions 121. Non appealable decisions
and orders.--Notwithstanding and orders.--Notwithstanding
anything to the contrary in any anything to the contrary in any
provisions of this Act, no appeal provisions of this Act, no appeal
shall lie against any decision taken shall lie against any decision taken
or order passed by an officer of or order passed by an officer of
central tax if such decision taken or State tax if such decision taken or
order passed relates to any one or order passed relates to any one or
more of the following matters, more of the following matters,
namely:-- namely:--
(a) an order of the Commissioner or (a) an order of the Commissioner
other authority empowered to or other authority empowered
direct transfer of proceedings to direct transfer of proceedings
from one officer to another from one officer to another
officer; or officer; or
(b) an order pertaining to the (b) an order pertaining to the
seizure or retention of books of seizure or retention of books of
account, register and other account, register and other
documents; or documents; or
(c) an order sanctioning prosecution (c) an order sanctioning
under this Act; or prosecution under this Act; or
(d) an order passed under Section (d) an order passed under Section
80. 80.
130. Confiscation of goods or 130. Confiscation of goods or
conveyances and levy of conveyances and levy of
penalty.--(1) Where any penalty.--(1) Where any person
person-- --
(i) supplies or receives any (i) supplies or receives any
goods in contravention of any goods in contravention of
of the provisions of this Act any of the provisions of this
or the rules made thereunder Act or the rules made
with intent to evade payment thereunder with intent to
of tax; or evade payment of tax; or
(ii) does not account for any (ii) does not account for any
goods on which he is liable to goods on which he is liable
pay tax under this Act; or to pay tax under this Act; or
(iii) supplies any goods liable to (iii) supplies any goods liable to
tax under this Act without tax under this Act without
having applied for having applied for
registration; or registration; or
(iv) contravenes any of the (iv) contravenes any of the
provisions of this Act or the provisions of this Act or the
rules made thereunder with rules made thereunder with
intent to evade payment of intent to evade payment of
tax; or tax; or
(v) uses any conveyance as a (v) uses any conveyance as a
means of transport for means of transport for
carriage of goods in carriage of goods in
contravention of the contravention of the
provisions of this Act or the provisions of this Act or the
rules made thereunder unless rules made thereunder
the owner of the conveyance unless the owner of the
proves that it was so used conveyance proves that it
without the knowledge or was so used without the
connivance of the owner knowledge or connivance of
himself, his agent, if any, and the owner himself, his
the person in charge of the agent, if any, and the person
conveyance, in charge of the conveyance,
then, all such goods or then, all such goods or
conveyances shall be liable to conveyances shall be liable
confiscation and the person to confiscation and the
shall be liable to penalty under person shall be liable to
Section 122.
penalty under Section 122.
(2) Whenever confiscation of any
goods or conveyance is authorised (2) Whenever confiscation of
by this Act, the officer adjudging it any goods or conveyance is
shall give to the owner of the goods authorised by this Act, the officer
an option to pay in lieu of adjudging it shall give to the owner
confiscation, such fine as the said of the goods an option to pay in
officer thinks fit: lieu of confiscation, such fine as the
said officer thinks fit:
Provided that such fine
leviable shall not exceed the Provided that such fine
market value of the goods leviable shall not exceed the
confiscated, less the tax market value of the goods
chargeable thereon: confiscated, less the tax
chargeable thereon:
Provided further that the Provided further that the
aggregate of such fine and penalty aggregate of such fine and
leviable shall not be less than the penalty leviable shall not be less
penalty equal to hundred per cent than the penalty equal to
of the tax payable on such goods: hundred per cent. of the tax
payable of such goods:
Provided also that where any
such conveyance is used for the Provided also that where any
carriage of the goods or such conveyance is used for the
passengers for hire, the owner of carriage of the goods or
the conveyance shall be given an passengers for hire, the owner
option to pay in lieu of the of the conveyance shall be given
confiscation of the conveyance a an option to pay in lieu of the
fine equal to the tax payable on confiscation of the conveyance a
the goods being transported fine equal to the tax payable on
thereon. the goods being transported
thereon.
(3) * * *
(3) * * *
(4) No order for confiscation of
goods or conveyance or for (4) No order for confiscation of
imposition of penalty shall be issued goods or conveyance or for
without giving the person an imposition of penalty shall be
opportunity of being heard. issued without giving the person an
opportunity of being heard.
(5) Where any goods or
conveyance are confiscated under (5) Where any goods or
this Act, the title of such goods or conveyance are confiscated under
conveyance shall thereupon vest in this Act, the title of such goods or
the Government. conveyance shall thereupon vest in
the Government.
(6) The proper officer adjudging
confiscation shall take and hold (6) The proper officer adjudging
possession of the things confiscated confiscation shall take and hold
and every officer of Police, on the possession of the things confiscated
requisition of such proper officer, and every officer of Police, on the
shall assist him in taking and requisition of such proper officer,
holding such possession. shall assist him in taking and
holding such possession.
(7) The proper officer may, after
satisfying himself that the (7) The proper officer may, after
confiscated goods or conveyance satisfying himself that the
are not required in any other confiscated goods or conveyance
proceedings under this Act and after are not required in any other
giving reasonable time not proceedings under this Act and
exceeding three months to pay fine after giving reasonable time not
in lieu of confiscation, dispose of exceeding three months to pay fine
such goods or conveyance and in lieu of confiscation, dispose of
deposit the sale proceeds thereof such goods or conveyance and
with the Government. deposit the sale proceeds thereof
with the Government
CGST RULES, 2017 KGST RULES, 2017
108. Appeal to the Appellate 108. Appeal to the Appellate
Authority.-- (1) An appeal to the Authority.--(1) An appeal to the
Appellate Authority under sub- Appellate Authority under sub-
section (1) of Section 107 shall section (1) of Section 107 shall
be filed in Form GST APL-01, be filed in FORM GST APL-01,
along with the relevant along with the relevant
documents, electronically, and a documents, either electronically
provisional acknowledgement or otherwise as may be notified
shall be issued to the appellant by the Commissioner, and a
immediately: provisional acknowledgement
shall be issued to the appellant
Provided that an appeal to
immediately.
the Appellate Authority may be
filed manually in FORM GST APL-
01, along with the relevant (2) The grounds of appeal and
documents, only if-- the form of verification as
contained in FORM GST APL-01
(i) the Commissioner has so shall be signed in the manner
notified, or specified in Rule 26.
(ii) the same cannot be filed
electronically due to non- (3) A certified copy of the
availability of the decision decision or order appealed against
or order to be appealed shall be submitted within seven
against on the common days of filing the appeal under sub-
portal, rule (1) and a final
and in such case, a provisional acknowledgement, indicating
acknowledgement shall be issued to appeal number shall be issued
the appellant immediately. thereafter in FORM GST APL-02 by
the Appellate Authority or an officer
authorised by him in this behalf:
(2) The grounds of appeal and
the Form of verification as
Provided that where the certified
contained in Form GST APL-01 shall
copy of the decision or order is
be signed in the manner specified in
submitted within seven days from
Rule 26.
the date of filing the FORM GST
APL-01, the date of filing of the
(3) Where the decision or order
appeal shall be the date of issue of
appealed against is uploaded on the
provisional acknowledgement and
common portal, a final
where the said copy is submitted
acknowledgment, indicating appeal
after seven days, the date of filing
number, shall be issued in FORM
of the appeal shall be the date of
GST APL-02 by the Appellate
submission of such copy.
Authority or an officer authorised by
him in this behalf and the date of
Explanation.--For the provisions
issue of the provisional
of this rule, the appeal shall be
acknowledgment shall be
treated as filed only when the final
considered as the date of filing of
acknowledgement, indicating the
appeal:
appeal number is issued.
Provided that where the
decision or order appealed
against is not uploaded on the
common portal, the appellant
shall submit a self-certified copy
of the said decision or order
within a period of seven days
from the date of filing of FORM
GST APL-01 and a final
acknowledgment, indicating
appeal number, shall be issued
in FORM GST APL-02 by the
Appellate Authority or an officer
authorised by him in this behalf,
and the date of issue of the
provisional acknowledgment
shall be considered as the date
of filing of appeal:
Provided further that where
the said self-certified copy of the
decision or order is not
submitted within a period of
seven days from the date of
filing of FORM GST APL-01, the
date of submission of such copy
shall be considered as the date
of filing of appeal.
Explanation.--For the provisions
of this rule, the appeal shall be
treated as filed only when the final
acknowledgement, indicating the
appeal number, is issued.
109. Application to the Appellate 109. Application to the
Authority.--(1) An application to Appellate Authority.--(1) An
the Appellate Authority under sub- application to the Appellate
section (2) of Section 107 shall be Authority under sub-section (2) of
filed in FORM GST APL-03, along Section 107 shall be made in FORM
with the relevant documents, GST APL- 03, along with the
electronically and a provisional relevant documents, either
acknowledgment shall be issued to electronically or otherwise as may
the appellant immediately: be notified by the Commissioner.
Provided that an appeal to
the Appellate Authority may be (2) A certified copy of the
filed manually in FORM GST APL- decision or order appealed against
03, along with the relevant shall be submitted within seven
documents, only if-- days of the filing the application
under sub-rule (1) and an appeal
(i) the Commissioner has so number shall be generated by the
notified, or Appellate Authority or an officer
(ii) the same cannot be filed authorised by him in this behalf.
electronically due to non-
availability of the decision
or order to be appealed
against on the common
portal,
and in such case, a provisional
acknowledgement shall be issued to
the appellant immediately.
(2) Where the decision or order
appealed against is uploaded on the
common portal, a final
acknowledgment, indicating appeal
number, shall be issued in FORM
GST APL-02 by the Appellate
Authority or an officer authorised by
him in this behalf and the date of
issue of the provisional
acknowledgment shall be
considered as the date of filing of
appeal under sub-rule (1):
Provided that where the
decision or order appealed
against is not uploaded on the
common portal, the appellant
shall submit a self-certified copy
of the said decision or order
within a period of seven days
from the date of filing of FORM
GST APL-03 and a final
acknowledgment, indicating
appeal number, shall be issued
in FORM GST APL-02 by the
Appellate Authority or an officer
authorised by him in this behalf,
and the date of issue of the
provisional acknowledgment
shall be considered as the date
of filing of appeal:
Provided further that where the said
self-certified copy of the decision or
order is not submitted within a
period of seven days from the date
of filing of FORM GST APL-03, the
date of submission of such copy
shall be considered as the date of
filing of appeal.
109-A. Appointment of Appellate 109A. Appointment of Appellate
Authority-- (1) Any person Authority.--(1) Any person
aggrieved by any decision or order aggrieved by any decision or order
passed under this Act or the State passed under this Act or the
Goods and Services Tax Act or the Central Goods and Services Tax Act
Union Territory Goods and Services may appeal to--
Tax Act may appeal to--
(a) the Additional Commissioner
(a) the Commissioner (Appeals) (Appeals) where such decision
where such decision or order is or order is passed by the Joint
passed by the Additional or Joint Commissioner;
Commissioner;
(b) the Joint Commissioner
(b) the Additional Commissioner (Appeals) where such decision
(Appeals) where such decision or or order is passed by the
order is passed by the Deputy or Deputy or Assistant
Assistant Commissioner or Commissioner or Commercial
Superintendent, Tax Officer
within three months from the date within three months from the
on which the said decision or order date on which the said decision or
is communicated to such person. order is communicated to such
(2) An officer directed under sub- person.
section
(2) of Section 107 to appeal (2) An officer directed under
against any decision or order sub-section (2) of Section 107 to
passed under this Act or the State appeal against any decision or
Goods and Services Tax Act or the order passed under this Act or the
Union Territory Goods and Services Central Goods and Services Tax Act
Tax Act may appeal to − may appeal to--
(a) the Commissioner (a) the Additional Commissioner
(Appeals) where such (Appeals) where such decision
decision or order is passed or order is passed by the Joint
by the Additional or Joint Commissioner;
Commissioner;
(b) the Additional (b) the Joint Commissioner
Commissioner (Appeals) (Appeals) where such decision
where such decision or or order is passed by the
order is passed by the Deputy or Assistant
Deputy or Assistant Commissioner or Commercial
Commissioner or the Tax Officer
Superintendent,
within six months from the
date of communication of the said within six months from the date
decision or order. of communication of the said
decision or order.
(Emphasis supplied)
IGST Act, 2017
"20. Application of provisions of Central Goods and
Services Tax Act.--Subject to the provisions of this Act and
the rules made thereunder, the provisions of Central Goods and
Services Tax Act relating to,--
(i) scope of supply;
(ii) composite supply and mixed supply;
(iii) time and value of supply;
(iv) input tax credit;
(v) registration;
(vi) tax invoice, credit and debit notes;
(vii) accounts and records;
(viii) returns, other than late fee;
(ix) payment of tax;
(x) tax deduction at source;
(xi) collection of tax at source;
(xii) assessment;
(xiii) refunds;
(xiv) audit;
(xv) inspection, search, seizure and arrest;
(xvi) demands and recovery;
(xvii) liability to pay in certain cases;
(xviii) advance ruling;
(xix) appeals and revision;
(xx) presumption as to documents;
(xxi) offences and penalties;
(xxii) job work;
(xxiii) electronic commerce;
(xxiv) transitional provisions; and
(xxv) miscellaneous provisions including the provisions
relating to the imposition of interest and penalty,
shall, mutatis mutandis, apply, so far as may be, in
relation to integrated tax as they apply in relation to central tax
as if they are enacted under this Act:
Provided that in the case of tax deducted at source, the
deductor shall deduct tax at the rate of two per cent. from the
payment made or credited to the supplier:
Provided further that in the case of tax collected at
source, the operator shall collect tax at such rate not exceeding
two per cent, as may be notified on the recommendations of the
Council, of the net value of taxable supplies:
Provided also that for the purposes of this Act, the value
of a supply shall include any taxes, duties, cesses, fees and
charges levied under any law for the time being in force other
than this Act, and the Goods and Services Tax (Compensation to
States) Act, if charged separately by the supplier:
Provided also that in cases where the penalty is leviable
under the Central Goods and Services Tax Act and the State
Goods and Services Tax Act or the Union Territory Goods and
Services Tax Act, the penalty leviable under this Act shall be the
sum total of the said penalties:
Provided also that a maximum amount of forty crore
rupees shall be payable for each appeal to be filed before the
Appellate Authority or the Appellate Tribunal."
(Emphasis supplied)
IGST RULES, 2017
"2. Application of Central Goods and Services Tax
Rules.-- The Central Goods and Services Tax Rules, 2017, for
carrying out the provisions specified in Section 20 of the
Integrated Goods and Services Tax Act, 2017 shall, so far as
may be, apply in relation to integrated tax as they apply in
relation to central tax."
27. While hearing a challenge to the confiscation order passed
under Section 130 of the CGST, the Apex Court in the case of
FALCON ENTERPRISES VS. STATE OF GUJARAT6 holds that
such orders can only be challenged by way of an appeal under
Section 107 of CGST. The Apex Court holds as follows:
"1.Being aggrieved by the order of confiscation of
Goods and Demand of Tax, Fine and Penalty dated 31-8-
2020 passed by the Government of Gujarat, State Tax
Department, the Petitioner filed a writ petition which was
not entertained on the ground that the order which was
passed Under Section 130 of the Central Goods and
Services Tax Act, 2017 ('the CGST Act') is appealable
Under Section 107 of the CGST Act.
2. Ms. Meenakshi Arora, Learned Senior Counsel
appearing for the Petitioner relies upon Rule 141 which proves
that the seized goods may be released if the taxable person
pays an amount equivalent to the market price of such goods or
things or the amount of tax, interest and penalty that is or may
become payable by the taxable person, whichever is lower.
3. Section 107(6) provides that an appeal shall not be
entertained unless the Appellant pays the amount of tax,
SLP (C) No. 6923 of 2021, decided on 01.06.2021
interest, fine, fee and penalty arising out of the impugned order
in full, as is admitted by him, and a sum equivalent to 10% of
the remaining amount of tax in dispute arising out of the said
order. She contends that the appeal under Section 107 of the
CGST Act is not an efficacious remedy. Section 107 of the
CGST Act provides that an appeal lies against any
decision or order passed by the adjudicating authority.
4. The Petitioner is at liberty to raise all issues
before the appellate authority.
5. With the above observation, the special leave petition
is disposed of. Pending application(s), if any, shall also stand
disposed of."
(Emphasis supplied)
28. Later, the Apex Court in the case of COMMR. OF STATE
TAX V. COMMERCIAL STEEL LTD.7, while deciding the issue of
maintainability of a writ petition challenging an order of detention
passed under Section 129(3) of the CGST r/w Section 20 of the
IGST, holds that the such orders should be challenged by way of
the statutory remedy of appeal provided under Section 107 of CGST
and the Writ Petition is only maintainable in certain circumstances
mentioned below. The Apex Court holds as follows;
"9. Section 107 is extracted below:
"107. Appeals to appellate authority.--(1) Any
person aggrieved by any decision or order passed under this
Act or the State Goods and Services Tax Act or the Union
(2022)16 SCC 447
Territory Goods and Services Tax Act by an adjudicating
authority may appeal to such appellate authority as may be
prescribed within three months from the date on which the
said decision or order is communicated to such person.
(2) The Commissioner may, on his own motion, or
upon request from the Commissioner of State tax or the
Commissioner of Union territory tax, call for and examine
the record of any proceedings in which an adjudicating
authority has passed any decision or order under this Act or
the State Goods and Services Tax Act or the Union Territory
Goods and Services Tax Act, for the purpose of satisfying
himself as to the legality or propriety of the said decision or
order and may, by order, direct any officer subordinate to
him to apply to the appellate authority within six months
from the date of communication of the said decision or
order for the determination of such points arising out of the
said decision or order as may be specified by the
Commissioner in his order.
(3) Where, in pursuance of an order under sub-
section (2), the authorised officer makes an application to
the appellate authority, such application shall be dealt with
by the appellate authority as if it were an appeal made
against the decision or order of the adjudicating authority
and such authorised officer were an appellant and the
provisions of this Act relating to appeals shall apply to such
application.
(4) The appellate authority may, if he is satisfied
that the appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period of three
months or six months, as the case may be, allow it to be
presented within a further period of one month.
(5) Every appeal under this section shall be in such
form and shall be verified in such manner as may be
prescribed.
(6) No appeal shall be filed under sub-section (1),
unless the appellant has paid--
(a) in full, such part of the amount of tax, interest,
fine, fee and penalty arising from the impugned order, as is
admitted by him; and
(b) a sum equal to ten per cent of the remaining
amount of tax in dispute arising from the said order, subject
to a maximum of twenty-five crore rupees, in relation to
which the appeal has been filed:
Provided that no appeal shall be filed against an
order under sub-section (3) of Section 129, unless a sum
equal to twenty-five per cent of the penalty has been paid
by the appellant.
(7) Where the appellant has paid the amount under
sub-section (6), the recovery proceedings for the balance
amount shall be deemed to be stayed.
(8) The appellate authority shall give an opportunity
to the appellant of being heard.
(9) The appellate authority may, if sufficient cause is
shown at any stage of hearing of an appeal, grant time to
the parties or any of them and adjourn the hearing of the
appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted
more than three times to a party during hearing of the
appeal.
(10) The appellate authority may, at the time of
hearing of an appeal, allow an appellant to add any ground
of appeal not specified in the grounds of appeal, if it is
satisfied that the omission of that ground from the grounds
of appeal was not wilful or unreasonable.
(11) The appellate authority shall, after making such
further inquiry as may be necessary, pass such order, as it
thinks just and proper, confirming, modifying or annulling
the decision or order appealed against but shall not refer
the case back to the adjudicating authority that passed the
said decision or order:
Provided that an order enhancing any fee or penalty
or fine in lieu of confiscation or confiscating goods of greater
value or reducing the amount of refund or input tax credit
shall not be passed unless the appellant has been given a
reasonable opportunity of showing cause against the
proposed order:
Provided further that where the appellate authority is
of the opinion that any tax has not been paid or short-paid
or erroneously refunded, or where input tax credit has been
wrongly availed or utilised, no order requiring the appellant
to pay such tax or input tax credit shall be passed unless
the appellant is given notice to show cause against the
proposed order and the order is passed within the time-limit
specified under Section 73 or Section 74.
(12) The order of the appellate authority disposing of
the appeal shall be in writing and shall state the points for
determination, the decision thereon and the reasons for
such decision.
(13) The appellate authority shall, where it is
possible to do so, hear and decide every appeal within a
period of one year from the date on which it is filed:
Provided that where the issuance of order is stayed
by an order of a court or Tribunal, the period of such stay
shall be excluded in computing the period of one year.
(14) On disposal of the appeal, the appellate
authority shall communicate the order passed by it to the
appellant, respondent and to the adjudicating authority.
(15) A copy of the order passed by the appellate
authority shall also be sent to the jurisdictional
Commissioner or the authority designated by him in this
behalf and the jurisdictional Commissioner of State tax or
Commissioner of Union Territory Tax or an authority
designated by him in this behalf.
(16) Every order passed under this section shall,
subject to the provisions of Section 108 or Section 113 or
Section 117 or Section 118 be final and binding on the
parties."
10. The respondent had a statutory remedy under
Section 107. Instead of availing of the remedy, the
respondent instituted a petition under Article 226. The
existence of an alternative remedy is not an absolute bar
to the maintainability of a writ petition under Article 226
of the Constitution. But a writ petition can be entertained
in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or
delegated legislation.
11. In the present case, none of the above
exceptions was established. There was, in fact, no
violation of the principles of natural justice since a notice
was served on the person in charge of the conveyance. In
this backdrop, it was not appropriate for the High Court
to entertain a writ petition. The assessment of facts
would have to be carried out by the appellate authority.
As a matter of fact, the High Court has while doing this
exercise proceeded on the basis of surmises. However,
since we are inclined to relegate the respondent to the
pursuit of the alternate statutory remedy under Section
107, this Court makes no observation on the merits of the
case of the respondent.
12. For the above reasons, we allow the appeal and set
aside the impugned order [Commercial Steel Co. v. Commr. of
State Tax, 2020 SCC OnLine TS 291] of the High Court. The writ
petition filed by the respondent shall stand dismissed. However,
this shall not preclude the respondent from taking recourse to
appropriate remedies which are available in terms of Section
107 of the CGST Act to pursue the grievance in regard to the
action which has been adopted by the State in the present case.
(Emphasis supplied)
29. The Division Bench of this Court in the case of KESAR
FARM v. ADDL. COMMISSIONER8 , while upholding an order of a
Singe Bench of this Court regarding availability of an appeal under
Writ Appeal No.3974 OF 2019, Dated 02.12.2019.
section 107 of CGST, challenging an order under Section 129 of the
KGST and CGST r/w Section 20 of the IGST, holds as follows:
".... .... ....
2. The appellant is the writ petitioner, who
challenged the notice of tax and penalty under sub-
Section (1)(b) of Section 129 of the Karnataka Goods and
Services Act, 2017 and the Central Goods and Services
Act, 2017 as well as Section 20 of the Integrated Goods
and Service Tax Act, 2017. On the basis of the said notice, an
order of demand has been issued on 15th October 2019. The
learned Single Judge has declined to entertain the petition on
the ground that an efficacious remedy of an appeal under
Section 107 of the Central Goods and Services Act of 2017 (for
short 'the Central Act of 2017') is available.
3. The submission of the learned counsel for
appellant is that Sections 129 and 130 of the Central Act
of 2017 start with a non obstante clause. Inviting our
attention to sub-Section (6) of Section 107 of the Central
Act of 2017, he submitted that obviously the remedy
under Section 107 of the Central Act of 2017 will not be
available. He pointed out various sub-Sections forming a
part of Sections 129 and 130 of the Central Act of 2017.
4. Sub-Section (1) of Section 107 of the Central Act
of 2017 provides that any person aggrieved by any
decision or order passed under the Act or the State Goods
and Services Act or the Union Territory Goods and
Services Tax Act by an Adjudicating Authority may appeal
to the Appellate Authority within the time specified
therein. We fail to understand how the non obstante
Clauses in both Sections 129 and 130 of the Central Act of
2017, will affect the remedy of an appeal under Section
107 of the Central Act of 2017, in any manner, in as much
as, Section 107 of the Central Act of 2017, provides for an
appeal against any decision or order. Section 121 of the
Central Act of 2017, which starts with a non obstante
clause provides that in certain category of cases, no
appeal shall lie. The order subject matter of challenge
before the learned Single Judge is not covered by Section
121. The submission of the learned counsel for appellant
was that in Section 121 of the Central Act of 2017, there
is a mistake and it should be read as if the provision is
applicable only to a particular Chapter, in which the said
provision is there.
5.However, it is not permissible for us to read
something in Section 121 of the Central Act of 2017,
which is not expressly provided by the Legislature.
6. We, therefore, concur with the view taken by the
learned Single Judge that a remedy of an appeal under
Section 107 of the Central Act of 2017 was available to
the appellant. Hence, we find no merit in the appeal and the
same is accordingly dismissed. Time granted by the learned
Single Judge to prefer the appeal is extended by another four
weeks from today. All contentions urged on merits of the appeal
are not considered."
(Emphasis supplied)
The Division Bench holds that the non-obstante clauses in Sections
129 and 130 of CGST will not affect the remedy of appeal under
Section 107 of the CGST and Section 121 of the CGST does not
specifically state that orders under Section 129 and 130 of the
CGST are not appealable.
30. A co-ordinate bench of this Court in RAJALAKSHMI
ENTERPRISES v. ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT FINANCE DEPARTMENT9, following the judgment
of the Division Bench in the case of KESAR FARM supra holds that
confiscation orders passed under Section 130 of the KGST Act and
CGST Act r/w the IGST Act can only be challenged by way of an
appeal under Section 107 of the CGST Act. The coordinate bench
holds as follows:
".... .... ....
2.The Commercial Tax Officer (Enforcement)-16
South Zone, Bangalore by the impugned order has passed
orders for confiscation of 'Goods' and 'Conveyance' under
Section 130 of the Karnataka Goods and Services Tax Act,
2017 (For short, 'KGST Act') and the Central Goods and
Services Tax Act, 2017 (For short, 'CGST Act') as well as
Integrated Goods and Services Tax Act, 2017 (For short,
'IGST Act').The said officer has concluded that there is
contravention of Sub-Sections (i) and (v) of the
provisions of Section 130(1) of the KGST Act/CGST Act.
3. The learned Counsel for the petitioner submits that the
petitioner's transaction viz., purchase of arecanut from Kaduru,
Chikkamagaluru District and transfer thereof to the recipient in
Delhi is an inter-state transaction and in terms of Section 10 of
the IGST Act, the State of Delhi would be the authority to collect
taxes. The failure to produce e-way bill by the driver at the time
of interception of the vehicle on Huliyal - Shira road enroute to
Delhi is a bona fide error. In any event, the officer by the
impugned order could not have levied tax, penalty or fine on the
market value of the property.
4. Sri N.Hema Kumar, learned Additional Government
Advocate submits that the petitioner has an alternative remedy
under Section 107 of the CGST Act and the time within such
alternative remedy could be availed has not expired. On the
Writ Petition No. 12554/2020, Dated 13.11.2020.
question whether an appeal could lie under Section 107
of the CGST Act, a Division Bench of this Court in Writ
Appeal No.3974/2019 has affirmed that indeed such
remedy would be available.
5.In the facts and circumstances of the case, and in
the light of the enunciation by the Division Bench in
W.A.No.3974/2019, this Court is of the considered view
that the petitioner must avail the alternative remedy
under Section 107 of the CGST Act. At this point of time,
Sri Hema Kumar, learned Additional Government
Advocate points out that the authorities have not taken
any precipitous action because the appeal time has not
lapsed. If this be so, it would be just and reasonable to
dispose of this writ petition with liberty to the petitioner
to avail alternative remedy under Section 107 of the CGST
Act, while directing the authorities not to take precipitous
action in the limitation period within which appropriate
appeal could be filed by the petitioner.
(Emphasis supplied)
31. On a similar issue of non-availability of an appeal under
Section 107 of the CGST, a co-ordinate Bench of this Court in the
case of K.B. PROCESSING AND TRADING V. JOINT
COMMISSIONER OF COMMERCIAL TAXES10, holds as follows:
".... .... ....
2. The petitioner is before this Court questioning the
order at Annexure-A, dated 07.06.2023, passed by the 2nd
respondent. The order is passed by the Authority under
Section 130 of the Central Goods and Service Tax Act
2017 ('CGST Act' for short).
Writ Petition No. 105711 of 2023, Decided on 08.12. 2023
3.The learned counsel for the respondents raised a
preliminary objection relating to the maintainability of
the writ petition on the premise that the impugned order
is appealable under Section 107 of CGST Act.
4. The learned counsel for the petitioner to substantiate
his contention that writ petition is maintainable, urged the
following contentions:
a. The Authority who passed the order under
Section 130 of the CGST Act has no jurisdiction
to pass the order under Section 130 of CGST
Act as the conditions precedent to pass the
order under Section 130 of CGST Act have not
been met;
b. The Authority which passed the impugned order
has no power to impose tax and the Authority
imposing penalty equivalent to tax, could not
have imposed the penalty as he had no
authority to impose the tax without there being
adjudication under Section 74 of the CGST Act;
c. The Officer who passed the impugned
order claims to be the "proper officer"
under the Act and claims that authority is
duly assigned to him by the Commissioner.
In such an event, the authority does not
come under the definition of 'Adjudicating
Authority' as defined under Section 2(4) of
the KGST Act as the "Commissioner" is not
an Adjudicating Authority under Section
2(4) of the KGST Act. Since the appeal is
provided under Section 107 of the CGST
Act, only against the order of an
'Adjudicating Authority', and as the
Commissioner is not the adjudicating
authority under Section 2(4) of the KGST
Act, the appeal under Section 107 of the
CGST Act is not maintainable.
5. This Court has considered the contentions raised at the
bar.
6. As far as the jurisdiction of the officer under the
KGST Act to take appropriate action in respect of goods
which are supposed to be the goods coming under
Integrated Goods and Services, the learned counsel for
the respondent-revenue refers to Circular dated
22.06.2020. On perusal of the said circular, it is apparent
that the officer under the State Goods and Service Tax
Act is also empowered to exercise the power under the
IGST Act. This being the position, the contention that the
officer under the State Act has no jurisdiction to pass any
orders in respect of the transaction covered under the
IGST Act, has no merit.
7. The contention that penalty imposed under Section
130 of the CGST Act equivalent to the tax payable is one
without jurisdiction, as the Authority under Section 74 of the
CGST Act has not yet determined the tax, is concerned, same is
not acceptable for the simple reason that proper officer under
the CGST Act is enabled under the State Act to impose the
penalty determined under Section 122 of the CGST Act.
8. Section 122 of CGST Act provides for imposing penalty
of Rs.10,000/- or an amount equivalent to tax evaded and such
other amount of tax specified in the said provision. If the
Authority empowered to impose penalty equivalent to the tax
evaded, then by necessary implication, it can be concluded that
the Authority also has power to determine the tax. Thus, the
contention that there is no authority for the proper officer
exercising power under Section 130 of the CGST Act to impose
penalty, cannot be accepted.
9. As far as the contention that appeal remedy is
not available, it is to be noticed that definition of
'Adjudicating Authority' as defined in Section 2(4) of the
KGST Act, cannot be made applicable to hold that the
petitioner has no appeal remedy under Section 107 of
CGST Act.
10.Section 2(4) of the CGST Act defines the term
"Adjudicating Authority" and under the said definition,
the Commissioner is not kept out of the purview of the
definition of "Adjudicating Authority" as is done under
the KGST Act.
11. The definition of "Adjudicating Authority" under
the State Act, cannot be made applicable to the definition
of "Adjudicating Authority" under Section 107 of the
CGST Act as the expression Adjudicating Authority under
the CGST Act is defined including the Commissioner as
the Adjudicating Authority. To interpret the meaning of
expression "Adjudicating Authority" found in Section 107
of CGST Act, one has to refer to the definition found in the
very same Act and not any other Act, unless such
prescription is found in the Act. No provision is pointed
out to support the contention.
12.Thus, this Court is of the view that the petitioner
has alternative remedy of appeal before the Appellate
Authority. No exceptional case is made to entertain the
writ petition despite alternative remedy being available.
Accordingly writ petition is not entertained."
(Emphasis supplied)
The coordinate bench holds that an officer under the State Goods
and Service Tax Act is also an officer under the IGST and the
Commissioner is not kept out of the purview of the definition of
Adjudicating Authority under Section 2(4) of the CGST and
therefore, an order under Section 130 of the CGST is appealable
under Section 107 of the CGST.
32. In the case at hand, the order of confiscation is passed
under Section 130 of the KGST supra, exercising power under the
IGST. The issue with regard to jurisdiction is answered in favour of
the Revenue holding that the Officer appointed under Section 6 of
the KGST is a proper officer under Section 4 of the IGST. On the
same reason, the appeal against an order of confiscation by an
officer under Section 130 of the KGST would undoubtedly be
maintainable under Section 107 of the KGST or Section 20 of the
IGST, as the case would be.
33. In view of the preceding analysis, I hold that the petition
before this Court is not entertainable, in the light of existence of an
alternative statutory remedy of filing an appeal under Section 107
of the KGST r/w Section 20 of the IGST. Petitioner is granted 4
weeks time to file an appeal. In the event, the appeal is preferred
within 4 weeks from the date of receipt of the copy of this order,
the Appellate Authority shall consider the issue on its merit, without
reference to limitation.
34. The petitioner is at liberty to prefer an application before
the Appellate Authority seeking release of the confiscated material
and if an application of the kind is filed before the Appellate
Authority, the Appellate Authority shall decide the application within
an outer limit of one(1) week from the date of its filing, in
accordance with law, owing to the fact that the confiscated material
is a perishable commodity - Areca nut.
35. Till the application of the petitioner is considered, the
confiscated goods shall not be auctioned, it would be subject to the
orders that would be passed by the Appellate Authority.
36. With the above observations and the liberty so granted to
the petitioner, the petition stands disposed.
Ordered accordingly.
SD/-
JUSTICE M.NAGAPRASANNA
Bkp
