VINOD METAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioner in these proceedings under Article 226 of the Constitution of India has approached this Court making a grievance in regard to the functionality of the GSTN Portal, which according to the Petitioner, has prevented it from lodging/filing of a statutory appeal under the provisions of Sec. 107 of the Central Goods and Services Tax Act, 2017 (for short "the CGST Act"), in a situation wherein the Petitioner had intended to take the benefit of the voluntary deposit of the CGST made by the Petitioner under the provisions of sub-sec. (5) of Sec. 73 of the CGST Act, in relation to the compliance of the provisions of sub-sec. (6) of Sec. 107 of the CGST Act. Such provision mandates that no appeal shall be filed under sub-sec. (1) of Sec. 107 of the CGST Act, unless the appellant has paid in full such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as admitted by him; and a sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order, in relation to which an appeal is intended to be preferred.

(2.) To appreciate the contentions as urged by the Petitioner, it would be necessary to note the provisions of Sec. 73 of the CGST Act, which provide for determination of tax not paid or short paid or erroneously refunded, etc. and the provisions of Sec. 107 of the CGST Act, which provides for appeals to appellate authority. The said provisions reads thus:

(3.) The Petitioner has contended that for the purpose of the pre-deposit for an appeal intended to be filed by the Petitioner under Sec. 107 as per sub-sec. (6) of Sec. 107 of the CGST Act, the amount as deposited by the Petitioner under sub-sec. (5) of Sec. 73 of the CGST Act needs to be accepted towards fulfillment of such pre-deposit, as the said amount is already made, it cannot be contended by the Revenue, that such deposit is not available, when it comes to the compliance of sub-sec. (6) of Sec. 107 of the CGST Act. It is contended that, in a given circumstance, it may be unjust and/or unwarranted that the assessee is required to shell out an additional amount so as to comply the mandate of pre-deposit as per sub-sec. (6) of Sec. 107 of the CGST Act. This, of course, would depend in facts and circumstances of the case. It is submitted that in any event, such adjustment of the amount voluntarily deposited needs to be accepted, as the assessee has not sought the refund of such amount, but is seeking an adjustment of the said amount towards the pre-deposit for filing an appeal under Sec. 107 of the CGST Act. It is contended that it would be also unjust and arbitrary that such an adjustment is not permitted and the doors of the appellate authority are closed for such assessee in denying such an adjustment. Further in such situations, the electronic filing Portal itself would not open or would remain closed, in respect of such assessee, who seek adjustment of the voluntary payment of tax already made and who intend to take benefit of such voluntary deposit for the compliance of sub-sec. (5) of Sec. 107 of the CGST Act. In support of such contention and the principle, which is sought to be canvassed by the Petitioner, reliance is placed on a decision of the Supreme Court in the case of VVF (India) Ltd. vs. State of Maharashtra,2021 SCC OnLine SC 1 202. being a decision rendered in the context of the provisions of Sec. 26(6A) of the Maharashtra Value Added Tax Act, 2002 (for short "the MVAT Act").