Order Date – 21 April 2023

Parties: SSB Petro Products & Ors. Vs The Assistant Commissioner, State Tax, Shibpur Charge & Ors.

Facts –

• The Appellant, SSB Petro Products & Ors., were served with an intimation of the tax ascertained as being payable under Sections 73(5) and 74(5) of the Goods & Services Tax Act dated 05.03.2021. The appellants filed their reply to the show cause notice on 08.03.2021. The matter was not adjudicated further and kept pending.
• Thereafter, the second respondent issued Form GST DRC01 (under Rule 142(1)(a) of the GST Rules) dated 16.09.2021, the appellant not aware of the said notice for being uploaded in the portal and they came to know of the same only after the sum of Rs. 1,84,930/- was paid from their electronic credit ledger.
• Being aggrieved the appellant filed an appeal.

Issue –

• Whether the second respondent could have initiate fresh proceeding when the same was already pending for adjudication?

Order –

• The Divisional Bench of Hon’ble High Court observed that the preliminary proceedings could not have been initiated by the second respondent when proceeding initiated by the first respondent for the very same amount on the very same allegation was not taken to the logical end.
• It is very crucial to note that from the final report of the first respondent it is seen that the proceeding was closed by the first respondent only on 24.01.2023. Thus, for all purposes, it is deemed that the first proceedings initiated by the first respondent pursuant to intimation dated 05.03.2021 had attained finality only on 23.01.2022 and on the said date, the appeal as against the second proceedings initiated by the second respondent was already pending before the appellate authority.
• The appeal should not be treated to be as time barred, more particularly, when the appellants had responded to the first intimation dated 05.03.2021 and submitted their reply on 08.03.2021, and it was not considered and disposed of. It was directed that the appeal should be decided on merits and in accordance with law.
• The appeal is allowed.