Dated 13th July, 2020

 
The taxability dispute on ocean freight has been finally decided by the Gujarat High Court, which held that taxing ocean freight is ultra vires and leads to double-taxation

Writ petition cannot be sustained wherein the remedy of filing appeal available before Appellate Authority.1


In a writ petition before the Karnataka High Court, the Appellant had challenged the order passed by the adjudicating authority.

The Appellant is engaged in the business of procurement, fabrication, construction, project management and integrated design to build solutions to onshore and offshore Hydrocarbon Projects. The Appellant was moving a particular quantity of goods from its SEZ unit to their bonded warehouse at Gujarat. It is also to be noted that movement of the said goods was processed by the SEZ unit of Appellant at Tamil Nadu. During the movement of goods, sudden lockdown was imposed by Government of India and as a result the movement of goods was on a stand still.

When movement of goods vehicle were allowed under relaxation norms of lockdown, one of the conveyance was inspected by Commercial Tax Officer and on verification as specified in Section 129(1) of the CGST Act, 2017, and the officer detained goods along with the conveyance on the ground that actual quantity in vehicle was 41 MT but in declaration it was showing only 31 MT.

The officer herein referred to as the respondent issued a notice proposing to demand of integrated tax and also penalty equal to 100% of the tax amount u/s 129(1)(a) and 129(1)(b) of the GST Act.The only question agitated by the Appellant before the High Court was that it was a clerical error and therefore relief was demanded by the Appellant.

Contention of the Appellant

The Appellant pointed out that letter was submitted to the respondent giving the reason for discrepancy. It was contended that such discrepancy occurred due to clerical and typographical error and cannot be considered as violation of the norms which attracts penalty. As per Appellant, the present case is about a bond movement and the said transaction is considered as import by bonded warehouse and the same is not liable to GST. The imposition of Penalty u/s 129(1)(a) and 129(1)(b) of CGST Act is not sustainable order by the authority. The order should have been rectified by the appropriate authority on suo moto, but the authority has not acted upon.

Contention of the Respondent

On the contrary, the respondent argued that, that the appeal under Section 107 of Central Goods and Services Tax Act, 2017 are to be filed before the appellate authority. As such the appellant cannot be in a hurry and invoke writ remedy under Article 226 of the Constitution of India.

The respondent contented that it cannot be concluded that the order is only clerical error and misreading of the quantity of the goods. Since Appellant never agreed upon claims therefore the error cannot be treated as a clerical one.

Judgment of the Hon'ble High Court of Karnataka

In the given case the appellate authority is Joint Commissioner of Commercial Tax and remedy is already available under Section 107 of the CGST Act to file an appeal against the order. Thus where remedy is provided under the Act and appeal can be filed by the Appellant, the writ remedy cannot be invoked by making the High Court as middle authority. High court cannot be placed in between the prescribed authority and the appellate authority as per Section 107 of CGST Act.

It is also to be noted that, in the whole matter equally efficacious remedy is prescribed by law for the Appellant.

The situation of the present case does not stand in the footing of error or oversight or a slip. Hence there is no need to examine and adjudicate entitlement of the relief in the circumstances under writ jurisdiction as mentioned in Article 226 of the Constitution of India.

It is clear from the above discussion that when one appeal is provided, writ remedy cannot be invoked by making High Court as middle authority or simply cannot be placed in between prescribed authority and Appellate.

1 M/s L AND T HYDROCARBON ENGINEERING LTD (2020-TIOL-1142-HC-KAR-GST)


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