CM No.6710/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of.

W.P.(C) 2309/2021

3. The petition impugns the order dated 28th December, 2020 of the respondent Goods and Services Tax (GST) Officer and seeks mandamus for refund of ₹ 4,98,456/- paid as tax and penalty thereunder and also seeks costs for illegal detention of goods of the petitioners.

4. It is the case of the petitioners that owing to the farmers protest around Delhi, the validity of the E-Way Bill issued on 27th November, 2020 and whereunder the goods were being transported, expired on 10^th December, 2020 resulting in the goods being detained and tax and penalty being imposed thereon. It is stated that the petitioners, to have the goods released, were forced to pay the tax and penalty and hence this petition.

5. The counsel for the respondents appearing on advance notice states that the remedy of appeal to the Additional Commissioner is available to the petitioners within the statutory framework and thus this writ petition is not maintainable.

6. The counsel for the petitioner contends that the respondents, by their action have deprived the petitioners of availing of the remedy of appeal and thus the petitioners cannot be relegated to the statutory remedy of appeal. Attention is invited to the FORM GST MOV-01 dated 12th December, 2020 at pages 80 and 81 of the paper book to show that the respondent GST Officer has not even recorded the documents presented to him viz. E-Way Bill and the invoice, which in fact were produced by the petitioners before the respondent GST Officer. On asking, how the statement of the petitioners to the effect that the documents were indeed produced is to be believed, attention is drawn to FORM GST MOV-02 dated 12th December, 2020 at page 84 of the paper book which contains the words “E- Way bill expire”. It is stated that it is obvious therefrom that the E-Way Bill was produced and the entry to the effect that the documents were not produced is wrong. Rather, it is contended that in FORM GST MOV-01, neither of the two options i.e. whether the documents were produced or not produced has been crossed out but in the annexure thereto the entry required to be made of the documents, if had been produced, has been made.

7. We are however of the opinion that the said pleas of the petitioners can also be considered by the Additional Commissioner, in the appellate remedy.

8. We, in exercise of jurisdiction under Article 226 of the Constitution of India cannot be drawn into these factual controversies and are not satisfied that the appellant, owing to the aforesaid, is deprived of the remedy of appeal.

9. Be that as it may, a specific direction for consideration of the said pleas of the petitioners can also be made.

10. The petition is thus disposed of with liberty to the petitioners to prefer the appellate remedy before the Additional Commissioner and which if preferred shall be decided in accordance with law and it will be open to the petitioners to take all the aforesaid pleas also in the appeal and the Additional Commissioner shall return a finding on merits thereon.

11. The said appeal be decided within a period of six weeks from the date of institution. A copy of this order be also filed along with the appeal.

12. The petition is disposed of.