AI Structured Summary
Not yet generated for this judgment
Judgment
W.P.(C) No.12644 of 2023 & I.A. No.5811 of 2023
This matter is taken up through hybrid mode.
Heard learned counsel for the parities.
The petitioner has filed this writ petition seeking to set aside the demand of tax, interest and penalty as passed by the Deputy Commissioner of Central GST & Central Excise, Keonjhar Division, Keonjhar (O.P.2) in the impugned order and the issue of consequential Form GST DRC-07 at Annexure-1. The petitioner has further prayed to direct the opposite parties to determine the rate of GST @ 5% on payment of Royalty, DMF and NMET for the period July’ 2017 to March 2018 as per Notification No. 11/2017-CT (R) 28.06.2017 and also to hold the order of the Appellate Authority for Advance Ruling, Odisha is not applicable to the petitioner as the observation of the Appellate Authority that Notification No. 27/2018 dated 31.12.2018 is clarificatory in nature and shall be applicable retrospectively is incorrect view.
Mr. K.K Acharya, learned counsel for the petitioner vehemently contended that the rate of GST is only applicable prospectively and it cannot have retrospective effect. To substantiate his argument he relied on the order of this Court dated 07.04.2022 passed in W.P.(C) No. 3181 of 2022 (Arvind Steels v. Additional CT & GST Officer, Rourkela-II Circle, Sundargarh and others) and contended that the petitioner therein has been protected by virtue of the interim order passed by this Court by prima facie observing that the nature of demand made applying the rate of GST retrospectively cannot sustain in the eye of law.
Mr. Avinash Kedia, learned Jr. Standing Counsel appearing for GST & Central Excise contended that in the case of Arvind Steels (supra) against the notice of show cause, the petitioner had approached this Court, but here the final order has been passed by the authority, which is appealable one and instead of approaching the appellate authority, the petitioner has approached this Court directly, which is not permissible. It is further contended that the demand has been raised on the order passed by the Appellate Authority of Advance Ruling, therefore, the petitioner cannot claim the benefit as prayed in this writ petition.
Having heard learned counsel for the parties and after going through the record, even though in the case of Arvind Steel (supra) the petitioner has come against the show cause notice, this Court has already protected the petitioner therein by observing prima facie that any subsequent enhanced rate of tax should be applied prospectively and not retrospectively. But in this case though the petitioner has come against the final order of assessment, he should not be prejudiced because of the determination of liability by calculating the GST retrospectively.
In view of the above, issue notice to the opposite parties.
Let two extra copies of the writ petition be served on Mr. Avinash Kedia, learned Jr. Standing Counsel for GST & Central Excise appearing for opposite parties No.1 & 2 within three working days.
As an interim measure, there shall be stay operation of the further proceeding pursuant to Order-in-Original No.06/AC-DC/GST/KJR/2022-23 dated 12.01.2023 under Annexure-1, till 21.08.2023.
Put up this matter connecting with W.P.(C) Nos. 27112 of 2022 and W.P.(C) No. 3181 of 2022.
…………………………..