S.No

section

Case Subject

Case

Held

1

Section
73 and
Section
107

Since the petitioner had
already availed
alternate remedy,
therefore the High Court
declined to interfere

Pappachan Chakkiath
v. Assistant
Commissioner [2023]
151 taxmann.com 275
(Kerala)

It was observed by the High Court that pursuant to the permission granted by the learned single Judge, the appellant had already
filed a statutory appeal. As the appellant had sought for availing the alternate remedy and had, in fact, availed it, the High Court
was not inclined to admit the writ appeal and hear the contentions of the appellant on merits. The High Court further stated that
the Learned Single Judge has considered the contentions and had entered findings only for the purpose of declining jurisdiction
under Article 226 of the Constitution of India for entertaining the writ petition and nothing more.

2

Section
107 and
Section
112

Revenue cannot ignore
the Order-in-Appeal and
deny the benefits of the
same on the ground that
it seeks to appeal the
said order

Netgear Technologies
India (P.) Ltd. v.
Assistant
Commissioner GST
[2023] 151
taxmann.com 273
(Delhi)

The petitioner's application for refund was rejected by the officer by an Order-in-Original. The Appellate Authority allowed the
appeal by an Order-in-Appeal. Notwithstanding the same, the petitioner's request for the claim was not processed. The petitioner
filed another application once again claiming refund of the said amount. Thereafter, by a communication dated 10.08.2021, the
petitioner was informed that the Commissioner, CGST, Delhi East Commissionerate had directed the respondent to file an appeal
against the Order-in-Appeal dated 09.03.2021. The said appeal has not been preferred as yet.
The High Court noted that the respondent had taken no steps to secure any order about the stay of the Order-in-Appeal pursuant
to which the petitioner was now entitled to the claim of refund. The High Court allowed the petition and rejected the contention of
the revenue that the Revenue can ignore the Order-in-Appeal and deny the benefits of the same on the ground that it seeks to
appeal the said order.
Cases Referred-Zones Corporate Solutions Pvt. Ltd. v. Commissioner of Central Goods & Services Tax Delhi East & Anr.:
2020-VIL-302-DEL:W.P.(C) 3620/2020 and Alex Tour and Travel Private Limited v. Assistant Commissioner, CGST

3

Section
98

Principle of Natural
Justice should have
been followed and
petitioner should have
been informed that
application could be
rejected without
admission

KBL SPML 25JV v.
Authority for Advance
Ruling [2023] 151
taxmann.com 272
(Karnataka)

The advance ruling authority had rejected the petitioner's application as contemplated under Section 98(2) of the CGST/KGST Act
recording that the petitioner, who had the benefit of contract for construction of pumping stations and reservoirs as also for
Operation and Maintenance work between 01.11.2014 and 31.10.2021, had filed application for advance ruling on 07.09.2022
after the expiry of the corresponding contractual period.
The High Court was of the considered view that opportunity of hearing as contemplated under Section 98(2) cannot be an empty
formality, and the petitioner should have been informed that the application could be rejected without admission on the ground the
corresponding contractual period has expired. Therefore, the High Court directed that the opportunity of hearing contemplated was
rendered a mere formality by the Authority. The petitioner must therefore have appropriate liberty to file additional plea to show
cause against such reasoning and the respondent must reconsider the application

4

Section
74

Opportunity of being
heard be granted to the
assessee

Subodh Kumar
Mondal v. State of
West Bengal [2023]
151 taxmann.com 271
(Calcutta)

Impugned orders were passed under Section 74(9) of the WBGST Act, 2017. The appellant approached the Writ Court on the
ground that opportunity of personal hearing having not been granted. During the pendency of the writ petitions the entire amount,
which was demanded had been fully recovered except penalty and interest. It was contended by the revenue that notice was
issued fixing the hearing date, but appellant failed to appear on the said date and also did not appear on the adjourned date. The
petitioner contended that in the SCN dt 28th Sep, 2022 in the column regarding details of personal hearing, it was mentioned as
"not applicable".
The High Court that since by way of third party garnishee order, since entire tax demanded from the appellant have been recovered,
therefore, revenue would not be prejudiced if a fresh opportunity of personal hearing is granted to the appellant to put forth his
submissions. Further, in the light of the fact that the entire tax demanded in the three orders has been recovered, the respondent
authorities are directed to de-freeze the bank account of the appellant

S.No

Section

Case Subject

Case

Held

1

Section
73 and
Rule 142

Service of
Notice on Email
ID not a valid
service of Notice

Shri Shyam baba
Edible Oils v. Chief
Commissioner
[2023] 151
taxmann.com 139
(Madhya Pradesh)

In the instant case, the service of show cause notice/order was challenged as the same was communicated through Email.
The High Court observed that a bare perusal of Rule 142 of CGST Rules, 2017 reveals that the only mode prescribed for communicating
the show-cause notice/order was by way of uploading the same on website of the revenue. The State in its reply had provided no material
to show that show-cause notice/order No.12 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG conceded that
the show-cause notice/order was communicated to petitioner by Email and was not uploaded on website of the revenue. Therefore, the
High Court held that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act was not
followed by the revenue, and thus the impugned order was struck down. The revenue was allowed the liberty to follow the procedure
prescribed under Rule 142 of CGST Act by communicating the show-cause notice to the petitioner by appropriate mode thereafter to
proceed in accordance with law.

2

Section
29 and
section
30

Order passed
without giving
sufficient time to
the petitioner
and without
considering
reply of the
petitioner set
aside

Pakiza Steel LLP v.
Union of India [2023]
151 taxmann.com
113 (Bombay

In the instant case, Petitioner had received a show cause notice on 5th September 2022 to show cause by 6 September 2022 that why the
registration should not be cancelled and by the said order, registration of the Petitioner was suspended with effect from that date. The
petitioner contended that although he did not have time to adequately prepare yet he submitted the reply and without considering the reply,
the final order came to be passed. It was further contended that although the impugned order referred to the reply, but it did consider the
same and the Authority proceeded to pass an order on entirely different ground on which the Petitioner did not get opportunity
The High Court observing that the impugned order had been passed in above circumstances directed that the petitioner be given an
opportunity before the final order of cancellation of registration is made However, they did not restore registration and registration continued
to remain suspended as per show cause notice.

3

Section
61 and
Section
74

Exercise of
Power under
Section 74 not
dependent on
issue of notice
under Section
61 and can be
exercised
independently

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (Allahabad)

The High Court did not accept the argument that unless deficiency in return is pointed out to the assesee, and an opportunity is given to
rectify such deficiency, that the department can proceed under Section 74 is not borne out from the statutory scheme and the argument in
that regard therefore, must fail. It was observed that the scrutiny proceedings of return as well as proceeding under Section 74 are two
separate and distinct exigencies and issuance of notice under Section 61(3), therefore, cannot be construed as a condition precedent for
initiation of action under Section 74 of the Act. The High Court further observed that the judgement in the matter of M/s. Vadivel Pyrotech
Private Ltd. v. The Assistant Commissioner, (2022 U.P.T.C. 1769) was limited to the facts of that case and do not lay down any proposition
of law which restricts the exercise of jurisdiction under Section 74 upon issuance of notice under Section 61(3) of the Act.
Therefore, the High Court held that merely because no notices were issued under Section 61 of the Act would not mean that issues of
classification or short payment of tax cannot be dealt with under Section 74 as exercise of such power is not dependent upon issuance of
notice under Section 61

4

Section
83

Cash-credit
facility is not a
debt and
therefore, not
attachable.

Naarjuna Agro
Chemicals (P.) Ltd. v.
State of U.P. [2023]
151 taxmann.com
112 (Allahabad)

The High Court held that cash-credit facility is not a debt and therefore, it cannot be made attachable and the Court was bound by the
above-stated precedent but cash-credit facility is not a debt and therefore, it cannot be made attachable. This Court is bound by the abovestated precedent; however Rule 159 clearly gives adequate power to the petitioner to file objection for releasing the bank account or, in the
instant case cash-credit facility, therefore when there was an efficacious relief in the statute itself, therefore, the High Court was of the view
that the petitioner should adopt such efficacious relief and Court was not inclined to afford any relief under Article 226 of the Constitution.
Cases Referred- Jugal Kishore Das v. Union of India reported in 2013 SCC Online Cal 19941, Radha Krishan Industries v. State of
Himachal Pradesh reported in 2021 (48) GSTL 113 (SC), Valerius Industries v. Union of India reported in 2019 (30) GSTL 15 (Guj),
Mardia Chemicals Limited v. Union of India [2004] 4 SCC 311, Overseas Bank v. Ashok Shaw Mill reported in [2009] 8 SCC 366.

S.No

Section

Case Subject

Case

Held

Cases Referred

1

73

Ex-Parte
Assessment
order without
following
Principle of
Natural Justice

CICO Patel JV v.
Union of India
[2023] 150
taxmann.com 226
(Patna)

Notwithstanding the statutory remedy, the high court is not precluded from interfering where, ex facie, an opinion is formed that
the order is bad in law on account of following reasons -
(a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to
represent his case;
(b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the
officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the
principles of natural justice, entails civil consequences;
(c) The authorities not to have adjudicated the matter on the attending facts and circumstances.

-

2

Para 5 of
Schedule
III and
9406

Whether supply
of Pre-Fabricated
Building is
supply of goods
or supply of
completed
building

Radiant
Enterprises P. Ltd.
v. Joint
Commissioner,
Central Goods and
Services Tax &
Central Excise
(Appeal I) [2023]
150 taxmann.com
225 (Calcutta)

The petitioner contended that since they have purchased a pre-fabricated building, which consisted of factory-made components
or units that are transported and assembled on-site to form complete building, therefore the same shall not be liable to tax by
virtue of Paragraph 5 of Schedule III i.e. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.
Considering the following reasons recorded by the Appellate Authority in holding against the petitioners, the High Court declined
to interfere with the impugned order of the Appellate Authority-
“I find that the appellant has purchased a Prefabricated Building classifiable under GST HSN Code 9406 from M/s. Eveready
Industries Ltd. Now a prefabricated building, informally a prefab, is a building that is manufactured and constructed using
prefabrication. It consists of factory-made components or units that are transported and assembled on-site to form the complete
building. Thus, it is evident from the invoice issued by M/s. Eveready Industries Ltd that they have supplied goods classifiable
under GST HSN Code 9406 to the appellant which is not specified in Section 7(2)(a) of CGST Act, 2017 and probably used
logistic services such as warehousing, flexi-storage by the appellant. Thus, it is evident that M/s. Eveready Industries Ltd have
not provided any Construction services of commercial buildings classifiable under GST service code number 99414. Thus, the
contention of the appellant cannot be sustainable”

-

3

Section
83

Issuance of
Fresh
Provisional
Attachment after
completion of
one Year

Madhav Copper
Ltd.
v. State of Gujarat
[2023] 150
taxmann.com 224
(Gujarat)

The petitioner contended that there was no power with the authorities to extend the provisional attachment beyond one year
with a fresh order.
The High Court observed that the proceedings for adjudication have already commenced with issuance of SCN under Section
74, therefore it would be rather a proper course to be adopted to direct the authorities to complete the adjudication proceedings
time-bound. Once the proceedings are over, the rights of the parties shall stand crystallized leaving the order of provisional
attachment to its own fate

-

4

Section
29

Cancellation of
Registration from
Retrospective
date wherein
SCN did not
provided any
such fact

Aditya Polymers v.
Commissioner of
Delhi Goods and
Services Tax
[2023] 150
taxmann.com 223
(Delhi)

The High Court observed that the SCN issued to the petitioner did not mention that the proper officer proposed to cancel the
registration with retrospective effect. Thus, the petitioner had no opportunity to address any proposed action of cancellation of
registration ab initio.
The High Court disposed of the petition with the direction that the cancellation of the petitioner's GST registration would take
effect from 11.12.2020 and not from 01.07.2017, since the petitioner submitted that the they would have no objection if the
registration is so cancelled from the date of SCN

-