Facts of the Case
The petitioner, Pharmaceuticals and Medical Devices Bureau
of India (PMBI), formerly known as the Bureau of Pharma Public Sector
Undertakings of India, approached the Kerala High Court in relation to
proceedings initiated under Section 129 of the CGST/SGST Act.
The grievance of the petitioner was that, despite initiation
of proceedings under Section 129, the competent officer had not issued an
adjudication order under Section 129(3) in Form GST MOV-09. Because no
such adjudication order had been issued, the petitioner’s statutory appeal was
not maintainable.
The record referred to invoices dated 13 February 2020 and
various proceedings in Forms GST MOV-01, MOV-02, MOV-04, MOV-06 and MOV-07
dated 15 February 2020. The petitioner had also produced a payment receipt
dated 21 February 2020, Form GST DRC-03 dated 21 February 2020 and Form GST
DRC-05 dated 21 February 2020.
The petitioner was aggrieved by the rejection of its appeal
under Section 107 of the CGST/SGST Act, in circumstances where the
underlying adjudication order in Form GST MOV-09 had not been issued.
Issues Involved
The principal issues before the Kerala High Court were:
- Whether
the proper officer is bound to issue an adjudication order under Section
129(3) of the CGST/SGST Act in Form GST MOV-09, even where the person
concerned opts to make payment under Section 129(1)(a).
- Whether
the provisions of Section 129(5) dispense with the requirement of
passing an adjudication order under Section 129(3).
- Whether
rejection of an appeal under Section 107 can be sustained when the
absence of Form GST MOV-09 itself prevents effective maintenance of the
statutory appeal.
- Whether
the proper officer must also issue the corresponding summary of the
order/demand in Form GST DRC-07.
Petitioner’s Arguments
The petitioner submitted that the Kerala High Court had
already considered similar issues in W.P.(C) Nos. 17454 of 2022 and 17463 of
2022.
It was argued that, in those matters, the High Court had taken
the view that even where a person opts to make payment under Section
129(1)(a) of the CGST/SGST Act, the concerned officer remains bound to
issue an adjudication order under Section 129(3).
The petitioner further relied upon the proposition that this
requirement continues notwithstanding the provisions contained in Section
129(5).
Accordingly, the absence of an adjudication order in Form GST
MOV-09 had effectively obstructed the petitioner’s statutory appellate remedy,
since the petitioner’s appeal was not maintainable without the necessary
adjudication order.
Respondent’s Arguments
The learned Senior Government Pleader confirmed before the
Court that the Kerala High Court had considered a similar issue in W.P.(C)
Nos. 17454 of 2022 and 17463 of 2022.
The respondent side also confirmed that the present writ
petition could be disposed of in the light of the findings contained in those
judgments.
Court’s Findings
The Kerala High Court accepted the position that the issue was
covered by its earlier consideration in W.P.(C) Nos. 17454 of 2022 and 17463
of 2022.
The Court proceeded on the basis that even in respect of
persons who opt to make payment under Section 129(1)(a), the concerned
officer is required to issue an adjudication order under Section 129(3),
notwithstanding Section 129(5).
The Court found it appropriate to set aside the order
rejecting the petitioner’s appeal under Section 107 and directed the proper
officer to complete the required adjudicatory process.
Court Order
The Kerala High Court allowed the writ petition and
passed the following directions:
- Ext.
P11, being the order rejecting the appeal filed by the
petitioner under Section 107 of the CGST/SGST Act, was set aside.
- The 1st
respondent was directed to upload an adjudication order in Form GST MOV-09
under Section 129(3) of the CGST/SGST Act.
- The
1st respondent was also directed to issue a corresponding summary of
the order/demand in Form GST DRC-07.
- These
steps were directed to be completed within 15 days from the date of
receipt of a certified copy of the judgment.
- The
Court expressly clarified that, after issuance of the adjudication order,
it would be open to the petitioner to file an appeal in the manner
prescribed under Section 107.
- The
petitioner was directed to appear before the 1st respondent at 11:00
A.M. on 9 August 2022.
- The
1st respondent was directed to issue the adjudication order after
affording an opportunity of hearing to the petitioner.
Important Clarification
The significant clarification emerging from the judgment is
that payment under Section 129(1)(a) does not, by itself, eliminate the
requirement of an adjudication order under Section 129(3) where such an
order is necessary to complete the statutory adjudicatory framework and
preserve the appellate remedy.
The judgment recognizes the legal importance of a formal
adjudication order in Form GST MOV-09. A taxpayer’s right to pursue an
appeal under Section 107 cannot effectively operate where the necessary
adjudication order has not been issued.
The Court’s reasoning also makes clear that Section 129(5)
cannot be treated as dispensing with the requirement of an adjudication order
under Section 129(3) in the circumstances considered by the Court, even
where payment has been made under Section 129(1)(a).
Further, the adjudication order is to be accompanied by the
corresponding summary in Form GST DRC-07, and the affected person must
be afforded an opportunity of hearing before the adjudication order is issued.
Related Case Law Referred to in the Judgment
The petitioner specifically relied upon, and the Court
recognized the similarity with:
- W.P.(C)
No. 17454 of 2022
- W.P.(C)
No. 17463 of 2022
These earlier writ petitions were referred to for the proposition that even persons opting to make payment under Section 129(1)(a) are entitled to issuance of an adjudication order under Section 129(3), notwithstanding the provisions of Section 129(5).
Sections Involved
- Section
129(1)(a) of the CGST/SGST Act — Payment of applicable tax
and penalty in proceedings relating to detention or seizure of goods and
conveyances in transit.
- Section
129(3) of the CGST/SGST Act — Issuance of notice and
passing of an adjudication order determining tax and penalty.
- Section
129(5) of the CGST/SGST Act — Conclusion of proceedings
upon payment of the amount referred to in Section 129(1).
- Section
107 of the CGST/SGST Act — Statutory appeal against
an appealable decision or order.
- Form
GST MOV-09 — Order determining tax and penalty in
proceedings under Section 129.
- Form
GST DRC-07 — Summary of the order/demand.
Link to download the order -https://mytaxexpert.co.in/uploads/1783673040_3059.pdf
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