1. This matter is taken up in the vacation court.

2. The challenge in the present petition is to the Show Cause Notice dated 1st October, 2021 issued by the Joint Commissioner of CT & GST, Rourkela-II Circle U/s.74 of the Odisha Goods and Sales Tax Act, 2017 (OGST Act).

3. It appears that after process of adjudication on the Petitioner’s application for refund, on 6th November, 2018 the refund order was in fact passed in favour of the Petitioner by the same authority, i.e. the Joint Commissioner of CT & GST, Rourkela-II and the refund amount of ₹ 75 lakhs was also paid to the Petitioner. Thereafter it appears that initially an intimation under Section 73(5) of the OGST Act was issued on 7th July, 2021 to which the Petitioner replied. This was followed by another notice under Section 73(1) on 18th September, 2021 which stood withdrawn subsequently on 21st September, 2021. Thereafter the impugned notice was issued under Section 74(1) of the OGST Act.

4. The contention of Mr. Acharya, learned counsel for the Petitioner is that against an order of erroneous refund it was open to the department to have filed an appeal under Section 107(1) of OGST Act but having missed the time limit for doing so, the Department cannot indirectly seek to reopen the refund already granted pursuant to an adjudication on the refund application by resorting to Section 74 of the OGST Act. He draws attention in particular to the proviso 1 and 2 to Section 107 (11) of the OGST Act which reads as under:

“107. Appeals to Appellate Authority-

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(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 utilized, 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.”

5. On the other hand Mr. S. Mishra, learned ASC for the Department draws attention to Section 74(1) of the OGST Act which reads as under:

“74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any willful misstatement or suppression of facts.-

(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilized by reason of fraud, or any willful misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilized input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under Section 50 and penalty equivalent to the tax specified in the notice.”

6. Having considered the submissions of learned counsel for the Parties the Court notices that there is no limitation placed by the Legislature on the powers exercisable under Section 74(1) of the OGST Act. In particular there is no indication that an order that is otherwise appealable under Section 107 of the OGST Act cannot be sought to be revisited under Section 74(1) of the OGST Act.

7. Also on a plain reading, Section 74(1) of the OGST Act does not appear to make any distinction between those refund orders that have been passed without an adjudication and those have been passed after an adjudication. Also, there is nothing in Section 74 (1) of the OGST act to indicate that an order of refund granted after an adjudication cannot be sought to be reopened thereunder.

8. For the aforementioned reasons the Court is not prepared to accept the plea of the Petitioner that the impugned notice dated 1st October, 2021 is without jurisdiction. However, the Court clarifies that it has expressed no opinion on the other contentions of the Petitioner on merits which it may advance in response to the impugned SCN. It would be open to the Petitioner to raise all such other contentions in its reply to the SCN which will then be examined and disposed of in accordance with law by the Department.

9. The writ petition is disposed of in the above terms.

10. An urgent certified copy of this order be issued as per rules.