M/S. Utkal Udyog vs Commissioner Ct & Gst And Others
2021 Latest Caselaw 5725 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      W.P.(C) No.15187 of 2021

               M/s. Utkal Udyog                     ....       Petitioner
                                          Mr. T.K. Satapathy, Advocate
                                     -versus-
               Commissioner CT & GST And Others     ....    Opp. Parties
                                                Mr. Sunil Mishra, ASC
                                                   for Opposite Parties

                      CORAM:
                      THE CHIEF JUSTICE
                      JUSTICE B. P. ROUTRAY
                                      ORDER

Order No. 30.04.2021

02. 1. The matter is taken up by video conferencing mode.

2. The Petitioner is aggrieved by the requirement under Section 107 of the Orissa Goods and Service Tax Act (OGST Act), read with Rule 108 of Orissa Goods and Service Tax Rules (OGST Rules) that mandates deposit of 10% of the demand as a pre- deposit for the appeal to be considered.

3. Counsel for the Petitioner submits that since the Petitioner has no financial means at this stage, his is unable to be even upload the appeal without pre-deposit. Relying upon the decision of Punjab and Haryana High Court in Kelmar (India) Exports v. State of Punjab (CWP No.17975 of 2020 decided on 2nd November, 2020), he urges that the Court should exercise its power under Article 226 of the Constitution either to waive or reduce the pre-deposit percentage to enable the Petitioner to file the appeal.

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4. Section 107 of the OGST Act is a mandatory provision and there is no discretion with the appellate authority to waive the requirement of pre-deposit. Even this Court cannot direct the appellate forum to do so contrary to the statute. As far as the judgment in Kelmar (India) Exports (supra) is concerned it was in the context of Punjab Value Added Tax Act. On the facts of that case the High Court thought it fit to reduce the pre-deposit from 25% to 10%. However, this Court is not persuaded to adopt that approach in view of the clear language of the statute applicable here.

5. It is noticed that under Section 107 of the OGST Act upon making a pre-deposit of 10% there is an automatic stay of the balance 90% of demand, which cannot, in the circumstances, be said to be unfair or unreasonable.

6. In that view of the matter the Court is not inclined to entertain the present petition. The writ petition is accordingly dismissed.

7. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No. 4798, dated 15th April, 2021.

(Dr. S. Muralidhar) Chief Justice

( B.P. Routray) Judge M.K. Panda/K.Majhi