2021 Supreme(All) 196

IN THE HIGH COURT OF ALLAHABAD
Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava, JJ.
M/S Torque Pharmaceuticals Pvt. Ltd. - Petitioner
Versus
Union Of India And 5 Others - Respondent
WRIT TAX No. -655 of 2018
WRIT TAX No. -90, 212, 223, 243, 390, 479, of 2018
WRIT TAX No. -121, 327, 332, 368, 457, 631, 634, 717, 969,970, 971, 993, 1019, 1286, 1333, 1386, 1387, 1388, of 2019
WRIT TAX No. -316, 319, 335, 416, 716 of 2020
Decided On : 09-02-2021

Point of law: Section 109 of the Goods and Service Tax Act, 2017, it is the Central Government which has to specify for each State and Indian Territory a bench of Appellate Tribunal "State Bench and on receipt on the request of the State Government, the Central Government has to constitute such number of Area Benches in the State as may be recommended by the Council

Headnote:

U.P. Goods and Services Tax Act, 2017 – Sections 107, 109, 112 – Central Goods and Services Tax Act, 2017 – UPGST Rules – Rule 138 – Writ of mandamus – Writ Tax has been treated as the leading writ petition and only the relief relating to the constitution of the Goods and Services Tax Appellate Tribunal (hereinafter referred to as ‘the Tribunal’) under the Central Goods and Services Tax Act, 2017 U.P. Goods and Services Tax Act, 2017 is being decided and all other questions are left open – Reliefs sought in Writ Tax are reproduced to issue a writ, order or direction in the nature of mandamus commanding respondents No. 1 & 2 to constitute 'Regional Bench' and 'State Bench' for the State of U.P, at the seat of jurisdictional High Court and also such number of ‘Area Benches’ in the State of U.P, as may be recommended by Respondent No. 6 – To Issue a Writ, order or direction in the nature of certiorari quashing the impugned order passed by Respondents No. 4 & 5 respectively – To Issue a writ, order or direction quashing the Circular issued by Respondent No. 2, to the extent it directs that Rule 138 of UPGST Rules under which Notification was issued prescribing e-way bill 01, gets automatically revived on rescinding of Notification In the Alternative – To issue a writ, order or directing declaring that Notification, as amended, is directory and not mandatory, in so far it requires carrying e-way bill 01 for inter-State transaction covered by IGST Act, 2017 – To issue any other writ, order or direction, which this Hon'ble Court may deem fit in the facts and circumstances of the case – To issue a writ, order or direction the nature of certiorari calling for and examining DO submitted by Respondent No. 2 before Respondent No. 6 and also the approval of Respondent No. 6 in its 40th meeting held in so far it relates to creation of State Bench of Goods and Services Tax Appellate Tribunal at Lucknow and quashing the said DO and approval of Respondent No. 6l, as without authority of law and contrary to Section 109 (6) of the Central Goods &Services Tax Act, 2017.

Finding of the court: It is pertinent to mention that dealers in the State of Uttar Pradesh falling under the CGST Act/ U.P. GST Act and aggrieved with the orders of first appellate authority under Section 107, have been left remediless inasmuch as Appellate Tribunal under the Act is not available in the State of Uttar Pradesh for preferring appeals under Section 112 of the CGST Act/ U.P. GST Act. – The Appellate Tribunal being the last fact finding authority and its not availability in the State of Uttar Pradesh, is causing serious prejudice to the rights of aggrieved persons for statutory appeal which is continuing since the enactment of the CGST Act/ U.P. GST Act. – Therefore, in peculiar facts and circumstances of the case and in view of the legislative mandate of Section 109(6) of the CGST Act, court direct as under GST Council shall forward its recommendation of Agenda Item No.6 of the 39th Meeting held to the Central Government/ respondent No.1 within two weeks from today – Thereafter, the respondent No.1/ Central Government shall, within next four weeks, specify by notification in terms of sub-Section (6) of Section 109 of the CGST Act the “State Bench” at Prayagraj (Allahabad), of the Goods and Services Tax Appellate Tribunal and four Area Benches at Ghaziabad, Lucknow, Varanasi and Agra, in the State of Uttar Pradesh for exercising the powers of the Appellate Tribunal – The respondent Nos.1, 2, 3 and 6 shall ensure that the State Bench and the Area Benches of the Appellate Tribunal (Goods and Service Tax Appellate Tribunal) in the State of Uttar Pradesh are made functional as far as possible from 01.04.2021 – Since the challenge to the impugned orders relates to questions of fact and the Appellate Tribunal is the last fact finding authority, therefore, court leave it open for all the petitioners to challenge the impugned orders before the Appellate Tribunal under Section 112 of the CGST Act/U.P. GST Act as and when the State Bench and Area Benches of the Appellate Tribunal are constituted in the State of Uttar Pradesh. – However, till expiry of the period of limitation for filing appeals under Section 112 of the CGST Act after establishment of the State Bench and Area Benches or till appeals are filed, whichever is earlier, no coercive action shall be taken against the petitioners herein pursuant to the impugned orders passed by the first authority or the first appellate authority. – Liberty is also granted to the petitioners to avail such remedy as available to them under law in respect of other reliefs which have not been considered and decided by this judgment.

Result: – Writ Petitions Disposed off