S. Ashok Kumar v. 1. The Commissioner of Customs and Central Tax

Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ or order or more in direction or Writ of lt/andamus and call for the records pertaining to the issued impugned Order in Appeal No. HYD- GST-RRC-APP'1 -COIVMR-054-25-26 dated 30lOgl2025 issued by the 1"t Respondent and set-aside the same lA NO: 1 OF 2025 Petition uncler Section 151 CPC praying that in the c rcunrstances stated in the affidavit filed in support of the petition, the High Courl may be pleased to stay the operation ol the issued impugned Order in Appeal I'jo. HYD-GST-RRC- APPl-CO[/IUR-054-)5-26 dated 3010912025 by the 1" Respondent till the disposal of the prr:sent Writ Petition Counsel for the Peti :ioner: SRl. S. DURAIRAJ REP SRI MADANU NARESH Counsel for the Resoondents: SRI DOMINIC FERNANDES (Senior Standing Counsel Fcr CBIC) The Court made the following: ORDER r THE HON'BLE THE CHIEF JUSTICE SRI APARESH K{IMAR SINGH THE HON'BLE SRI JUSTICE G.M.MOHIUDDIN AND WRIT PETITION No.32622 of 2025 ORDER: Learned counsel Sri S.Dr:rairaj, representing learned counsel Sri Madanu Naresh, appears for the petitioner Sri Dominic Fernandes, learned Senior Standing Counsel for Central Board ol Ir-rdirect Taxes and Customs, appears for the respondents.

2. The order-in-appeal dated 30.O9.2025 is under challenge. The appeliate authority has refused to interfere 1n the order-in original imposing penalty upon the petitioner.

3. During the course of hearing, it has been brought to the notice of this Court that the Goods and Services Tax Appellate Tribunal (hereinafter referred to as, "the Appellate Tribunal") has started functioning.

4. Section 712 of the Central Goods and S,:rvices Ta-x Act, 2O i 7 (hereinalter refei-red to as, "the Act"), irrovides for appeal to '-hr: Appcllate Tribunal. The Appeliate Tribunal has issued an order dated 24.09.2025 ur-rder llule 123 of the Goods ar:d Services Tax Appellate Tribunal (Procedure) Rules, 2025. classifying the category of cases specified ir-r column (21 of the table appended thereto ar-li the period during rvhich tl-re appea,l under Section 1 1 2 of the Act u'ould bc filel belore the Appellate Tribunal corresponding to the per-iorl during which the orders of ttre appellate authority ri,ere passed.

5. In the present case, since the impugncd order-in appeal is dated 3O.O9.2O25, the window for filing such appeal is prescribed at serial No.S i.e., comrnencing on

01.02.2026 or any date succeeding such date being r-rot later than 30.06.2026. It is further brought to :he notice of this Court that the Finance Act, 2025, notified on

29.O3.2O2|;. has amended Section 112 of tl:Le Act and added the proviso to sub-section (B) thereto, rn,hich reads as under-: "13O. In section 112 of the Central Goods and Services Tali Act, in sub-section (8), the following proviso shall be inscrted, namely:- "Provided that in case of any order demarding penalty without involving demand of any tax, no appeal shall be filed against such order unless a sum equal to ten per cent of the said penalty, in addition to the amount payable under the proviso to sub-section (6) of section 1O7 has been paid by the appellant.""

6. This Court has, in similar circumstances, relegated the aggrieved petitioner to preler an appeal before the Appellate Tribunal within a timeframe. It has a-lso been ordered that subject to deposit of lOo/o of the tax liability within the aforesaid time, no coercive action be taken against the petitioner therein till the decision of the Appellate Tribuna-l in the said appeal. 7 . In the instant case, there is no imposition of tax liability. But, the liability of penalty has been imposed. ) Under the amended proviso to Section ll2 ol the Act, the aggrieved person has to deposit a sum equal to 1O% of the penalty in addition to the amount payable under the 1 proviso to sub-section (6) of Section lO7 of the Act paid by the appellalt. l B. Le:rrned colrnsel lor the petitioner submits that since thc per-raltl rs of substantial amount, the petitiorrer mat' bc permittecl to make 1O7o deposit of the penaily amount within zr period of eight weeks. He also sr-romits that certain zu:noLurt, if any, deposited by the firm o[ the petitioner .rs tax liability in Form GST DRC-03 during the investigation may be permitted to be deducte(l from the 1O% of the p,:nalty amount to be deposited as rr condition of pre-cleposil lor oreferring the appeal.

9. To tl-re aforesaid submission, ttre learned Senior Stalding Clotrnsel for Central Board of lndirect Taxes anri Customs appearing for the respondents nas taken objection. ['lt: submits that the amount, if any, paid by the firm of thc pr:titioner as per Form GST DRC-0:} is torvards the tar lial;ility. The order-in-original as affirrned by the impugned order-in-appeal only imposes penalty. Therefore, the petitioner cannot take the benefit of making any deposit or payments towards tax liability during the { ( investigatirtn proceedings. I I I I i i I I I t I i

10. Upon consideration of the rival submissions of the parties, in the facts and circumstances noted above, the u,rit petition is disposed of '"vithout expressing any opinion on the merits of the case and by giving liberty to the petitioner to preler al appeal before the Appellate Tribunal within tl're window period prescribed under the order dated

24.O9.2025 issued by the Appellate Tribunal. The petitioner shall deposit lOo/o of the penalty amount within a period ol eight weeks from today. If the petitioner makes such pre-deposit within the aforesaid period, no coercive action be taken against the petitioner till the decision of the Appellate Tribunal in the appeal to be filed. We, hou,ever, do not accept the contention of the petitioner that the amount, if any, paid by the firm of the petitioner towards the tax liability during investigation can be adjusted as against pre-deposit to be made for the purposes of preferring the appeal before the Appellate Tribunal. However, there shall be no order as to costs. 6 lVliscr:lliureous applications pending, if an5., shall stand closcd SD/ . PONNA KRISHNA TANT REGISTRAR //TRUE COPY' \ \ \ecrrorv oFFrcER I I To,

1. The Commiss.:rier of Customs and Central Tax. Office of the Commissioner of Customs and Central Tax. Appeals I Commissione:rate 7th Floor, GST Bhavan, L.B. []tadium Road, Basheerbagh. Hyderabad- 500 004. 2. The Additional Commissioner of Central Tax, Rangareddy GST Commissionerate, GST Bhavan, H. No.. 1 -98i7i43, VIP Hills, Jaihind Enclave, Madhapur. HyCerabad-500 0'1 6. Lane Opp. HDFC Bank, Hyderabad - 500 016, 17, Suryabaglr, Besides lvlelody Theatre, Vishakapatnam - 530 020.

3. The Additional Director of DGGI, Vishakapattnam Zonal Unit, D- No. 28--14- 4. The Additionai Director of DGGI, Hyderabad Zonal Unit, H No. 1-1 1-22214, 5. One CC to SRI I\,4ADANU NARESH, Advocate [OPUCI 6. One CC to SFll DON/INIC FERNANDES, (senior standirrg counsel for CBIC) 7. Two CD Copie :s loPUCl B I\,4 BSA HIGH COUFTT DATED:2911012025 ORDER WP.No.32622. of 2025 Z.'tt". /.<oY' ,( -) ,-)o 81N0\l M \1 a iI ,l i,.r4't (:Hr,l DISPOSING {]F THE WRIT PETITION WITHOUT COSTS A