IN THE HIGH COURT AT CALCUTTA

Circuit Bench at Jalpaiguri

Constitutional Writ Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Hiranmay Bhattacharyya

W.P.A. 2116 of 2025

Sankar Agarwala

Vs.

The Joint Commissioner of CGST

and Central Excise (Appeal),

Siliguri Appeal Commissionerate & Ors.

For the Petitioner : Mr. Suman Bhowmik

Mr. Hillol Saha Podder

For the CGST : Mr. D.K. Agarwal

Mr. Bishwaraj Agarwal

Heard on : 03/11/2025 Judgment on : 03/11/2025

Hiranmay Bhattacharyya , J. :

1. This application under Article 226 of the Constitution of India is

directed against an order dated June 23, 2025 passed by the Joint Commissioner, CGST & Central Excise (Appeal), Siliguri

Appeal Commissionerate.

2. By the order impugned, the appeal preferred by the petitioner was rejected on the ground that the same was presented after the condonable period of 30 days as per the CGST Act, 2017.

3. A show-cause notice under Section 73(1) of the CGST Act, 2017 was issued calling upon the petitioner to show-cause as to why the demand raised in the show-cause should not be paid by him. No reply to the show-cause notice was filed and the Proper Officer passed an order dated December 14, 2023 under Section 73 (9) of the CGST Act, 2017 determining the tax, interest and penalty.

4. Being aggrieved by such order, petitioner preferred an appeal under the provisions of Section 107 of the CGST Act, 2017. Since the appeal was presented beyond the statutory period of limitation, the same was accompanied by an application praying for condonation of delay. The appellate authority being the respondent No.1 dismissed the said appeal on the ground that the same was filed after the condonable period of 30 days as per the CGST Act, 2017.

5. The learned advocate appearing for the petitioner submits that since the show-cause notice was uploaded only under the “Additional Notices and Orders” Tab and not under the normal Tab, the petitioner was not aware of issuance of the said show- cause notice for which the petitioner could not file any reply to the said show-cause notice. The learned advocate appearing for the petitioner further submits that immediately after coming to know of the order passed by the Proper Officer under Section 73(9) of the CGST Act, 2017, petitioner preferred an appeal under Section 107 of the CGST Act, 2017. He further submits that since, for reasons beyond the control of the petitioner, no reply to the show-cause notice was filed, an opportunity be afforded to the petitioner to contest the proceedings from the stage of filing reply to the said show-cause notice.

6. Per contra, Mr. Agarwal, learned advocate for the CGST authorities submits that the appellate authority lacks the power to condone the delay beyond the condonable period of 30 days and in support of such contention he placed reliance upon the provisions laid down in Section 107 (4) of the CGST Act, 2017. Mr. Agarwal further contends that the petitioner has not stated that he did not come to know of the show-cause notice from the “Additional Notices and Orders” Tab. He further submits since the petitioner was aware of uploading of the show-cause notice by the respondent authority, no further opportunity should be granted to the petitioner to file any reply to the show-cause notice.

7. Heard the learned advocates for the respective parties and perused the materials placed.

8. After going through the show-cause notice issued under Section

73(1) of the CGST Act, 2017, it is evident that an adverse decision was contemplated against the petitioner by issuing the show-cause notice.

9. Section 75(4) of the CGST Act, 2017 states that an opportunity of hearing shall be granted where request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person.

10. Since an adverse decision was contemplated against the petitioner by issuing a show-cause notice under Section 73(1) of the CGST Act, 2017 the Proper Officer was under a statutory obligation to