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Judgment
The Court proceedings have been conducted through video-conference.
Heard Ms. N. Hawelia, learned counsel for the petitioner.
Issue notice, returnable within three weeks.
Mr. S.C. Keyal, learned Standing Counsel, GST accepts notice on behalf of all the respondents.
As the respondents are duly represented, no formal steps for notice need to be taken in respect of the respondents. However, the petitioner shall
serve extra copies to the learned Standing Counsel, GST.
By filing this writ petition under Article 226 of the Constitution of India, the petitioner, who is a manufacturing unit, has challenged the validity of the
impugned notice dated 26.03.2021 raising a demand for refund of Rs.12,65,834/- purported to be 50% of the amount of the GST which was refunded
earlier to the petitioner along with interest. The petitioner is also aggrieved that the petitioner’s request for fixing the special rate as contemplated
under the rules has not been considered by the Revenue Authority before issuing the aforesaid demand notice. The petitioner has further prayed for
restraining the respondents from taking any steps/action pursuant to the said notice.
The learned counsel for the petitioner has referred to order dated 30.03.2021 passed by a Coordinate Bench of this Court in WP(C) No. 1969/2021
and it is submitted that this Court deemed it appropriate that the Commissioner of CGST, Dibrugarh would consider the application of the petitioner
therein claiming for fixation of the special rate and it was provided that till such decision was taken, no coercive measures be taken against the
petitioner pursuant to the communication impugned therein.
The relevant portion of the aforesaid order dated 30.03.2021 passed in WP(C) No. 1969/2021reads as follows,
“8. Pending further order, the Court is inclined to follow the two orders dated 24.03.2021 passed by this Court in WP(C) 1644/2021 and
WP(C) 2089/2021 and as an ad interim measure it is provided that the Commissioner of CGST, Dibrugarh (respondent no.2) shall dispose
of the application dated 28.09.2020 submitted by the petitioner, received in the office of the Commissioner on 30.09.2020, for fixation of
special rate within a period of 4(four) weeks from the date of receipt of the certified copy of the order. It is provided that till such decision
is taken, no coercive measure be taken against the petitioner pursuant to the demand notice dated 28.05.2020 and 08.01.2021 impugned in
this writ petition.â€
The learned counsel for the petitioner has prayed for a similar order to the effect that no coercive action be taken by the respondent authorities
pursuant to the impugned communication that 26.03.2021.
Mr. Keyal, learned Standing Counsel, GST acknowledges passing of such an order by this Court in the aforesaid WP(C) No.1969/2021.
However, Mr. Keyal, learned Standing Counsel, GST has submitted that the notice of demand which is impugned in the present petition is merely
in the nature of show-cause notice and, as such, he has raised an issue of maintainability of the present petition. Accordingly, the issue of
maintainability is kept open.
Mr. Keyal, learned Standing Counsel, GST, submits that the demand notice relating to the prayer of the petitioner to fix a special rate, is being
examined by the authorities which is likely to be concluded within a period of four weeks and, as such, the authorities will not take any coercive action
against the petitioner in terms of the aforesaid demand notice till such consideration by the Revenue Authorities.
In that view of the matter, pending further order, this Court is inclined to pass a similar order as passed on 30.03.2021 in WP(C) No. 1969/2021
and accordingly, the Revenue Authorities are directed not to act upon the aforesaid demand notice dated 26.03.2021 till a decision is taken by the
respondent authorities regarding fixation of special rate.
List after three weeks.