ORDER

1. The petitioner in the present Writ Petition seeks for a direction to the respondents No. 1 for deciding the application (Annexure P/9) dated 24.01.2023 before considering the contents of the appeal itself.

2. The facts are that a proceeding under Section 73(1) of the Finance Act, 1944 read with Section 174 of the CGST Act, 2017 was initiated against the petitioner. It is stated that an order was passed in the said proceeding on 27.01.2022.

3. It is the further contention of the petitioner that in the said proceeding, notice has never been issued to the petitioner and that he was not aware of such a proceeding at all.

4. However for the same cause of action, there was yet another show-cause notice issued on 17.10.2018 wherein the petitioner immediately appeared and submitted his reply and there he was contesting the case on merit. Meanwhile, since the order dated 27.01.2022 was passed, the concerned authority closed the subsequent proceeding vide order dated 22.02.2022 stating that the order has already been passed on the same set of facts on 27.01.2022.

5. It is said that the petitioner thereafter had been repeatedly approaching the authorities concerned alleging that he has never been noticed or any show-cause notice was issued and served upon the petitioner so far as the earlier proceeding under Section 73(1) that was initiated. After those were rejected, he has now preferred an appeal on 18.01.2023 and in the appeal that is pending before the Respondent No. 1, there is yet another fresh application that the petitioner has moved on 24.01.2023 (Annexure P/9) wherein the petitioner has sought for an order of the Appellate Authority to decide as to whether the petitioner was in-fact ever served with the show cause notice or not.

6. It is the said application, since it was filed on 24.01.2023 i.e. in just a couple of days before the filing of the present Writ Petition, it is yet to be taken up for consideration by the authorities concerned. The present Writ Petition has been filed by the petitioner seeking for a direction from this Court to the Respondent No. 1 to consider the said application first before considering the Appeal itself.

7. On a query being put to the Counsel for Petitioner, he fairly concedes the fact that his primary contention and primary ground in the appeal itself is that the order dated 27.01.2022 is without affording an opportunity of hearing in violation of principle of natural justice and that no show-cause notice was ever served upon the petitioner.

8. Given the fact that the aforesaid being the substantive ground in the Appeal itself, this Court does not find it necessary for now further directing the respondent No. 1 to decide Annexure P/9 dated 24.01.2023 before considering the Appeal itself on merits.

9. It goes without saying that since it is the substantive ground in the Appeal that the petitioner has raised so far as an opportunity of hearing being denied, it is this which would be first looked into by the Appellate Authority. It would also be left open for the Appellate Authority to consider whether there is justifiable reasons and grounds available for the petitioner in not preferring the Appeal under Section 107 before the Respondent No. 1 within the prescribed period or within the reasonable period of time. The Respondent No. 1 would be taking a decision on the said issue first before the proceeding further in the matter.

10. Accordingly, the present Writ Petition stands disposed of.