Gauhati High Court
Barak Valley Cements Ltd vs The Union Of India And 5 Ors on 15 February, 2021
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/4
GAHC010146392020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4334/2020
BARAK VALLEY CEMENTS LTD
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND
HAVING ITS REGISTERED OFFICE AT 202, ROYAL VIEW, B.K. KAKOTI
ROAD, ULUBARI, GUWAHATI, DIST-KAMRUP (M), ASSAM AND ITS
INDUSTRIAL UNIT AT DEBENDRANAGAR, JHOOM BASTI,
BADARPURGHAT, DIST-KARIMGNAJ, ASSAM. REPRESENTED BY SRI
BANWARILAL PAREEK, THE MANAGER OF THE PETITIONER COMPANY
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK,
NEW DELHI-110001
2:SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION
UDYOG BHAWAN
NEW DELHI-110011
3:JOINT SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION
UDYOG BHAWAN
NEW DELHI-110011
4:COMMISSIONER
CENTRAL GOODS AND SERVICE TAX
GST BHAWAN
KEDAR ROAD
FANCY BAZAR
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GUWAHATI-781001
5:ASSISTANT COMMISSIONER
CENTRAL GOODS AND SERVICES TAX AND CENTRAL EXCISE DIVISION
SILCHAR
6:CENTRAL BOARD OF EXCISE AND CUSTOMS
REPRESENTED BY ITS CHAIRMAN
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
NORTH BLOCK
NEW DELHI-11000
Advocate for the Petitioner : DR. ASHOK SARAF
Advocate for the Respondent : MR. S C KEYAL (SC, GST)
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
O R D E R
15.02.2021 Heard Dr. A Saraf, learned senior counsel for the petitioner and Mr. SC Keyal, learned standing counsel for the GST Department.
2. The petitioner is an assessee under the GST bearing registration No.18AABCB5691A2ZV. The respondents in the GST by an email dated 08.10.2020 had provided that the E-Way Bill (EWB) generation facility of the petitioner would be blocked on the EWB Portal in the event the petitioner fails to file their GSTR 3B returns for two financial years being 2018-19 and 201-20. The e-mail provides that the blockage of the EWB generation facility would be in terms of Rule 138 E (b) of the CGST Rules, 2017. The relevant portion of the e-mail is extracted as below:-
"Dear Sir/Madam, In terms of Rule 138 E (b) of the CGST Rules, 2017, the E Way Bill generation facility of a person is liable to be restricted, in case the person fails to file their GSTR-3B returns, for a consecutive period of two months or more.
As you might be aware that the GST Council in its last meeting has decided that this provision Page No.# 3/4 will be made applicable for the taxpayers whose Aggregate Annual Turn Over (AATO, PAN based) is more than Rs 5 Crores.
Thus, if the GSTIN associated with the respective PAN (with AATO over Rs 5 Cr.) has failed to file their GSTR-3B Return for 02 or more tax periods, up to the month of tax period of August, 2020, their EWB generation facility will be blocked on the EWB Portal. Please note that the EWB generation facility for such GSTINs (whether as consignor or consignee or by transporter) will be blocked on EWB Portal after 15th October, 2020.
To avail continuous EWB generation facility on EWB Portal, you are therefore advised to file your pending GSTR 3B returns immediately."
3. The stand of the writ petitioner is that they are entitled to certain benefits under the new Industrial Policy resolution as notified by the Government of India in the Industries Department by the Notification dated 24.12.1997 and as per the Industrial Policy, the petitioner is entitled to a refund amounting to Rs.14,42,51,265/- under the relevant budgetary support scheme. It is the stand of the petitioner that in spite of being entitled to the aforesaid refund, same has not been done by the respondent authorities. Accordingly, the petitioner takes a stand that as because the amount of Rs.14,42,51,265/- has not been refunded to the petitioner, therefore, the petitioner had defaulted in submitting the GST returns for the aforesaid two financial years.
4. We are not very much impressed with the said submission of the petitioner by linking up a refund being entitled to them under some other provisions of law and the requirement of law to submit their tax returns. We are also of the view that the same stand of the petitioner cannot bestow a legal right upon them not to pay the required GST under the law or not to submit their returns for two given financial years. But at the same time, if the petitioner is of the view that as because an amount of Rs.14,42,51,265/- had not been refunded to them and the requirement of tax to be paid by them is a small amount compared to the refund they are entitled and therefore they are unable to pay it, we are of the view that the interest of justice would be met if the respondents being the Principal Commissioner, GST, North-eastern Region would examine the matter and pass a reasoned order on the entitlement of the petitioner for a refund as indicated above.
5. The petitioner accordingly shall forthwith submit a representation before the Principal Commissioner, GST claiming and justifying the reasons for the refund as indicated above and in the event such representation is submitted, the Principal Commissioner shall pass a Page No.# 4/4 reasoned order thereon within a period of 10(ten) days from the date of submission of such representation. In doing so, the Principal Commissioner may also give a hearing to the petitioner. Upon considering the representation, the Principal Commissioner may pass a reasoned order on the entitlement of the petitioner for such refund within a period of ten days from the date of submission of the representation.
6. Till such order is passed by the Principal Commissioner, the earlier interim order dated 14.10.2020 requiring the respondents not to block the EWB Portal of the petitioner shall continue. In the event, the representation is not submitted within a period of three days from today, the continuation of the interim order shall no longer hold. In this writ petition, we are not deciding any other aspect other than requiring the Principal Commissioner to pass an order on the claim of the petitioner on the refund of the aforesaid amount.
The writ petition is disposed of in the above terms.
JUDGE Comparing Assistant