In the absence of GST Tribunals, it is always felt that the Hon’ble High Courts and further Hon’ble Supreme Court is being burdened with the matters which would otherwise be heard by the GST Appellate authorities. The process of formation of GST Tribunal has started since last one year, and going on, which may take some more time to form and also to actually start functioning.
Recently, in Jan-2025, Hon’ble Supreme Court while hearing a petition filed by M/s. Classic Decorators in SLP (C) No. 30660 of 2024 held that the petitioner cannot directly come to the Hon’ble High Court, when there is an alternate remedy available before First Appellate Authority under Section 107 of the CGST ACT, 2017.
The brief fact of the case is that the assessee received a demand show cause notice case and after adjudication the demand order was passed. The assessee felt that the demand order was passed without jurisdiction, or appeared to be illegal, and since there is no GST Tribunal, the first appeals before the Commissioner Appeals would also render fruitless, as in most of the cases, the hearings are not taking place especially when the first appellate authority is the State GST Department. The State GST Department also do not have proper facility to conduct virtual hearings. In the end of it the assessee suffers and is worried about the interest and penalty which grows every day, in case the decision goes against them. Hence, the assessee approached the Hon’ble High Court of Delhi. The Hon’ble High Court had held in W.P.(C) No. 16013 of 2024, that since the appeals against the Order passed under Section 73 of CGST Act, 2017, statutory alternative remedy of Appeal was available, but the petitioner filed a writ petition against the said order. Since the Petitioner had a statutory alternative remedy of preferring an appeal and in absence of any jurisdictional challenge, no justification was found to entertain this writ petition, and consequently, writ petition was to be dismissed, subject to rights of petitioner being reserved to pursue statutory alternative remedy.
Aggrieved, the assessee approached the Hon’ble Supreme Court to challenge the Hon’ble Delhi High Court’s judgement. It was held by Hon’ble Supreme Court, in SLP (C) No. 30660 of 2024 that “Undisputedly and against the final order referable to Section 73 of the Central Goods and Services Tax Act, 2017, the writ petitioner has a statutory alternative remedy of preferring an appeal. In the absence of any jurisdictional challenge being raised, we find no justification to entertain this writ petition. Consequently, we dismiss this writ petition subject to rights of the petitioner being reserved to pursue the statutory alternative remedy.”
Conclusion: To conclude that the doors to challenge the Orders under Section 73 before the Hon’ble High Courts, is now closed and the assessee have to wait and file appeals before the First Appellate Authority under Section 107, and before Second Appellate Authority i.e. the GST Tribunals as and when it is formed. However, it can be assured that the period in between would be considered as appeals period, and the GST Department would not insist for recovery before the case reaches its finality.
