2024(12)LCX0034

High Tech Ecogreen Contractors LLP

Versus

The Joint Director

WP(C) 4787/2024 decided on 12-12-2024

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/4787/2024

M/S HIGH TECH ECOGREEN CONTRACTORS LLP
(FORMERLY M/S HITECH CONSTRUCTION), A LIMITED LIABILITY
PARTNERSHIP FIRM, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT J.P.
AGARWALA ROAD, GAURIPUR, DHUBRI-783331 AND IN THE PRESENT
PROCEEDINGS IS BEING REPRESENTED BY ITS PARTNER MR. SUBHASH
KUMAR JAIN.

                VERSUS

THE JOINT DIRECTOR AND 2 ORS.
DIRECTORATE GENERAL OF GOODS AND SERVICES TAX INTELIGENCE
(DGGI), GUWAHATI ZONAL UNIT, H/NO. 4, RAJGARH BYE LANE NO. 2,
CHANDMARI, P.O. SILPUKHURI, GUWAHATI, ASSAM, PIN- 781003.

2:THE ADDITIONAL COMMISSIONER
CGST AND CENTRAL EXCISE
GUWAHATI
GST BHAWAN
KEDAR ROAD
MACHKHOWA
GUWAHATI-781001.

3:THE COMMISSIONER (APPEALS)
CGST AND CENTRAL EXCISE AND CUSTOMS
GUWAHATI
3RD FLOOR
GST BHAWAN
KEDAR ROAD
MACHKHOWA
GUWAHATI-781001

For petitioner(s)/appellant(s)     : Mr. V. Shraff, Advocate
                                               Mr. B. Podder, Advocate

For respondent(s)                     : Mr. S.C. Keyal, CGC

– BEFORE –
HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

12.12.2024

(Vijay Bishnoi, CJ)

    Heard the learned counsel for the parties.

    In this writ petition the petitioner has challenged the order dated 31.03.2023 passed by the Additional Commissioner, CGST & Central Excise, Guwahati, as well as the order dated 12.02.2024, passed by the Commissioner (Appeals), CGST & Central Excise, Guwahati, whereby the appeal preferred by the petitioner against the order dated 31.03.2023 has been dismissed on the ground of limitation. The petitioner has also challenged the validity of Rule 36(4) of the CGST/AGST Rules, 2017 claiming it violative of the provisions of the CGST and AGST Act.

    It is noticed that against the above-referred order dated 12.02.2024, the petitioner has the remedy of appeal before the Appellate Tribunal as per the provisions of Section 112 (2) of the CGST Act read with Rule 110 of the CGST Rules.

    However, learned counsel appearing for the petitioner has submitted that since the question regarding the validity of Rule 36(4) of the CGST/AGST Rules, 2017 cannot be raised before the appellate authority, this writ petition is being preferred before this Court without availing the remedy of appeal before the appellate Tribunal.

    Learned counsel for the petitioner has further submitted that though the petitioner had the opportunity to challenge the validity of Rule 36(4) of the CGST/AGST Rules, 2017 at the first instance when he had approached the Commissioner (Appeals), CGST & Central Excise, Guwahati, by filing an appeal against the order passed by the Additional Commissioner, CGST & Central Excise, Guwahati, but he had chosen not to raise the question regarding the validity of the above-referred Rule at that point of time.

    Learned counsel for the petitioner has vehemently submitted that simply because the issue of validity of Rule 36(4) of the CGST/AGST Rules, 2017 was not raised at that point of time when the petitioner preferred an appeal before the Appellate authority, it cannot be said that the question regarding validity of the said Rule cannot be raised before this Court because it is purely a question of law.

    Having heard the learned counsel for the parties and after going through the material available on record, we are of the view that the matter requires consideration.

    Hence, admit.

    No need to issue formal notice to the respondents as the respondents are duly represented by Mr. S.C. Keyal, learned Central Government Counsel.

    List for hearing on 13.02.2025.

JUDGE       CHIEF JUSTICE