Calcutta High Court: The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.
The Single Judge in the impugned order had directed the release of the goods along with vehicle taking note of the fact that the appellant who was the wife of the deceased dealer had paid 100% of the disputed tax and further 10% of the disputed tax. The Single Judge had concluded that the fact that as of now the GST Tribunal was not functional and had the avenue of appeal been available to the appellant, the appellant would have been required to pay 100% of the admitted tax and 10% of the disputed tax for her appeal to be entertained.
Counsel for the State strenuously contended that in terms of Section 129 of the CGST Act, 2017, the penalty would be 200% of the tax and since the appellant was not a registered dealer, the revenue could not take steps to recover the balance and, therefore, the appellant should be put on further terms by directing her to execute a bond and also other means to secure the interest of revenue.
Counsel for the respondent submitted that the respondent’s husband was a registered dealer under the GST Act and he had an untimely death and the respondent was taking steps to register herself as a dealer in the place of her husband and as on date she has stepped into the shoes of her husband drawing attention of the Court to Section 93 of the W.B.GST Act, 2017 which speaks of the liability of the legal representatives of the other persons in the case of death of a registered dealer.
Court was of the view that technical objection raised by the appellant had to be agitated before the Single Judge as the appellant has been given an opportunity to file an affidavit-in-opposition.
The Court had to decide whether the interest of revenue had been reasonably safeguarded to which the Court opined that the respondent having paid the 100% of the admitted tax and further 10% of the disputed tax, the interest of revenue has been safeguarded, for the present. The court however clarified that this order shall not be treated as laying down a legal principle or treated as a precedent as this court had not interpreted the provisions of Section 129 of the Act and rendered this decision but it was based on the fact that respondent was the wife of the deceased dealer and also that she was yet to be formally recognized as a dealer by substituting her name in the Registration Certificate for which specified procedure had to be followed.
The instant appeal and the connected application was dismissed.[Deputy Commissioner v. Nidhi Madhogaria, MAT 1332 of 2021, decided on 18-02-2022]
Mr A. Ray, G.P., Mr T. M. Siddiqui, Mr Debasish Ghosh… for the appellant State
Ms Rita Mukherjee, Mr Rowsan Kumar Jha, Mr Abhijat Das… for the respondent