The Orissa High Court has held that the Joint Commissioner of State Tax has the power to search and seizure and upheld the order passed under section 130 of the Integrated Goods and Service Tax (IGST) Act, 2017.
Mr R.P. Kar, Counsel appeared for the petitioner, Mr Sunil Mishra, Standing Counsel appeared for Revenue and Mr T.K. Satpathy, Standing Counsel appeared for Central GST & CT.
The petitioner, M/s. J and T Gems and Jewellery Pvt. Ltd sought to quash the order of confiscation/adjudication dated 15.04.2023 under Annexure-10 levying and demanding a fine and penalty by opposite party no.1.
The petitioner contended with a vehemence that the Joint Commissioner, State Tax, Enforcement Range, Bhubaneswar issued authorization in favour of one Shri M.K. Pradhan, Deputy Commissioner of State Tax, under Rule 139 (1) of the OGST/CGST Act in the prescribed form GST INS-1 for inspection, search and seizure and on that basis passed the demand order on 15.04.2023 under Section 130 of the OGST/CGST Act by levying penalty and fine on the petitioner instead of the confiscation.
He further contended that Mr. M.K. Pradhan being the search and seizure officer, has no authority to pass the final order and as such, he has acted as the judge of his cause.
Mr Suinil Mishra, Standing Counsel for the Revenue contended that the contention raised by learned counsel for the petitioner has no justification because the power has been vested with Mr M.K. Pradhan for making search and seizure and as such he has also got the power to pass the order about the imposition of penalty and fine under Section 130 of the OGST/CGST Act.
It was contended that he has no power to pass such an order, the same could have been raised, had the same been passed under Sections 73 and 74 of the Act itself and as such the document under Annexure-10 does not reflect the same to have been passed under Section 73 and 74 of the Act, rather it has been passed under Section 130 of the OGST/CGST Act.
The claim made by the petitioner that the seizure officer has no authority to pass the order under Annexure-10 is misconceived. It was observed that the impugned order is also appealable instead of availing the alternative remedy.
It was observed that the search and seizure authority having passed the order under Annexure-10 has exceeded its jurisdiction and is rejected. Rather the authority has acted within the competency to pass such an order. Therefore, the contention raised that he cannot be a judge of his cause, that principle does not apply to the present case.
A two-judge bench comprising Dr Justice B R Sarangi and Justice M S Raman disposed of the writ petition giving liberty to the petitioner to pursue its remedy before the appropriate authority.
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