Page 160 - GSTL_2nd April 2020_Vol 35_Part 1

62 GST LAW TIMES [ Vol. 35
appellant-writ petitioner claims to have paid the said amount to the Corporation
even before the goods were transported. It is the appellant-writ petitioner’s case
that it is the Corporation which, instead of raising two separate e-way bills for
two separate consignments, had raised one e-way bill for the total amount on
both the consignments.
4. While the goods of the appellant-writ petitioner were in transit, they
were seized and, on the ground that only one e-way bill was issued instead of
two, a penalty of Rs. 1,70,688/- was sought to be levied on the appellant-writ
petitioner. Contending that the penalty, if at all, should have been paid by the
Corporation, since the error in issuing one e-way bill instead of two was on their
part and not on the part of the appellant-writ petitioner, the jurisdiction of this
Court was invoked under Article 226 of the Constitution of India. The Learned
Single Judge, however, dismissed the writ petition at the stage of admission rele-
gating the appellant-writ petitioner to the remedy under Section 107 of the Cen-
tral Goods and Services Tax Act, 2017 (for short “the CGST Act”). Aggrieved
thereby, the present Special Appeal.
5. Mr. Piyush Garg, Learned Counsel for the appellant-writ petitioner,
would submit that the proceedings under challenge is an order of detention of
goods under Section 129 of the CGST Act; it is against the demand raised on de-
tention of the goods, for payment of tax and penalty, that the writ jurisdiction of
this Court was invoked; tax has already been paid to the Corporation before the
goods were even transported by the appellant-writ petitioner; the remedy, under
Section 107 of the CGST Act, is not efficacious since sub-section (6) of Section 107,
which requires 10% of the disputed amount to be paid, only provides for stay of
payment of the remaining amount, and nothing more; the appellant-writ peti-
tioner would not be able to take delivery of the seized goods from the second
respondent since Section 107 of the CGST Act does not provide for such an even-
tuality; and the appellant-writ petitioner had perforce to avail the remedy of in-
voking the jurisdiction of this Court under Article 226 of the Constitution of
India.
6. Section 107 of the CGST Act relates to Appeals to the Appellate Au-
thority and, under sub-section (1) thereof, any person, aggrieved by any decision
or order passed, under the CGST Act, or the State Goods and Services Tax Act,
by an adjudicating authority may appeal to such Appellate Authority as may be
prescribed within three months from the date on which such decision or order is
communicated to any such person. While an appeal, under Section 107 of the
CGST Act, would lie to the Appellate Authority against any decision or order
passed by an adjudicating authority, Section 2(4) of the CGST Act defines “adju-
dicating authority” in very broad terms. Under Section 2(4) of the CGST Act, an
“adjudicating authority” has been defined to mean any authority, appointed or
authorised to pass any order or decision under the Act, but not to include the
authorities specified therein. Admittedly the Appellate Authority, under Section
107(1) of the CGST Act, is not one such. Since an appeal would lie against any
order passed or decision taken by any authority appointed or authorized to pass
any order or decision under the Act, it does appear that an order of detention can
also be appealed against under Section 107(1) of the CGST Act.
7. Section 107(6) of the CGST Act stipulates that no appeal shall be
filed, under sub-section (1), unless the appellant has paid - (a) in full, such part of
the amount of tax, interest, fine, fee and penalty arising from the impugned or-
der, as is admitted by him; and (b) a sum equal to 10% of the remaining amount

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