Hon'ble Deepak Verma,J.
Parcha/appearance, filed by Sri Rajesh Kumar Singh, Advocate on behalf of respondents No.1 and 2, is taken on record.
Heard learned counsel for the petitioner, learned standing counsel for the respondents No. 3 & 4 and Sri Rajesh Kumar Singh, learned counsel for respondents No. 1 and 2.
Challenging the order of the original authority under Section 129 (1) (b) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the C.G.S.T. Act, 2017) as also the order of the first appellate authority under Section 107 of the Act for levy of tax and penalty, the contention of the learned counsel for the petitioner that G.S.T. Tribunal under the Act, 2017 has yet not been constituted. As a result of which, the petitioner cannot avail the remedy of appeal to the Appellate Tribunal under Section 112 of the Act, 2017. Further contention is that the petitioner has shown his willingness to pay the tax and penalty fixed by the C.G.S.T. authority under Section 129 (1) (b) of the Act, 2017 but the vehicle/tractor and goods seized under Section 129 of the Act, have not been released.
The first and second prayer are to the following effect:-
"(i) Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned orders dated 29.10.2020 passed by Assistant Commissioner (mobile Squad-7) Commercial Tax, Ghaziabad in Mov-9 NO.2021100983142047 and order dated 28.11.2020 passed by Additional Commissioner, Grade-2, Division-4, Commercial Tax, Ghaziabad in Appeal No.GHA 4/0999/2020 under UPGST Act 2017 read with Section 129 (3) as well as tax and penalty levied under Section 129 (1) (b) may be held invalid contained in (Annexure No. 3 and 4 of writ petition.
(ii) Issue a writ order or direction in the nature of mandamus directing the respondents authorities to release the tractor trolly having registration No.U.P. 74U/3587 with shape and sanction load seized the same may be given to custody of the proprietor Anil Kumar on such term and conditions."
As far as the first prayer of the petitioner regarding the challenge to the order of the authorities under the C.G.S.T. Act, 2017 is concerned, the Division Bench of this Court, while disposing the Writ Tax No.655 of 2018 along with the connected writ petitions filed before this Court challenging the orders of the C.G.S.T. authorities, has issued the following directions:-
"32. 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, we direct as under:
(i) The GST Council shall forward its recommendation of Agenda Item No.6 of the 39th Meeting held on 14.03.2020 to the Central Government/ respondent No.1 within two weeks from today.
(ii) 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.
(iii) 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.
(iv) Since the challenge to the impugned orders relates to questions of fact and the Appellate Tribunal is the last fact finding authority, therefore, we 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.
33. For all the reasons stated above, the writ petitions are disposed off as indicated above. Accordingly, the relief Nos.(A), (D-1) and (E-1), are granted. There shall be no order as to costs."
We find that the petitioner herein is entitled for the same relief.
As far as second prayer is concerned, we may note that a self contained procedure has been provided under the C.G.S.T. Act, 2017 for release of the vehicle on fulfillment of the conditions after seizure of the goods and conveyance under Section 129 of the Act, itself. The petitioner has to comply with the provisions of the Act. The release of the goods and vehicles would be subject of the compliance of the requisite conditions by the petitioner. No direction as prayed for in the prayer no. 2 can be issued by this Court.
The writ petition is, accordingly, disposed of with the above directions with regard to only prayer no. (i).
Order Date :- 22.2.2021 Meenu