# M/S Apex Leather , Kanpur v. State Of U.P. & Ors

- **Citation:** (2022) 3 ILRA 779
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-09
- **Case number:** Writ Tax No. 96 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-apex-leather-kanpur-v-state-of-u-p-ors-48239
- **Pages:** 9

## Headnote

(A) Tax Law - Constitution of India, 1950
- Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods & Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Validity of rejection of claim of refund u/s
54 of CGST/UPGST Act, 2017 - writ
petition - preliminary objection by both
St. Govt. as well as Central Govt. counsel -
to avail the remedy of an Appeal u/s 112
of the Act, 2017 - Since, till date Govt. has
not constitution of St. Bench & Areas
Benches in UP - as such preliminary
objection is impermissible. (Para - 5, 8)

(B) Tax Law - Constitution of India,1950 -
Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods and Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Writ Petition - against rejection order u/s
section 54 - Remedy is to file statutory
Appeal u/s 112 - Since, till date no
constitution
of
benches
of
Appellate
Tribunal in UP as such writ petitions are
filed in High Court - one bench of Hon'ble
High Court issued direction to constitute
Appellate Tribunal - but same is not
constituted due to interim order passed by
another Bench - 'it is a settle law that, a
coordinate bench cannot sit in appeal over
the final judgment of another coordinate
bench of equal strength - as such - to
handle the alarming situation in UP being
remediless - place this matter before
Hon'ble Chief justice - for referred the
'question of formation of Tribunal in UP' to
a Larger Bench. (Para No. 21, 22)

Writ Petition pending. (E-11)

List of Cases cited: -

## Text

3 All. M/S Apex Leather, Kanpur Vs. State of U.P. & Ors.
779
entered in computer resources outside
the control of the originator i.e. the
assessing authority that shall the date
and time of issuance of notice under
section 148 read with Section 149 of the
Act, 1961.

30. In view of the discussion made
above, we hold that mere digitally signing
the notice is not the issuance of notice.
Since the impugned notice under Section
148 of the Act, 1961 was issued to the
petitioner on 06.04.2021 through e-mail,
therefore, we hold that the impugned notice
under section 148 of the Act, 1961 is time
barred. Consequently, the impugned notice
is quashed.

31. The writ petition is allowed.
----------
(2022)03ILR A779
ORIGINAl JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 96 of 2022

M/S Apex Leather , Kanpur ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal

Counsel for the Respondents:
Sri Amit Mahajan, Sri Bhanu Pratap Singh,
Kachhawah, C.S.C., Sri Krishna Agarawal,
Sri Shashi Prakash Singh

(A) Tax Law - Constitution of India, 1950
- Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods & Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Validity of rejection of claim of refund u/s
54 of CGST/UPGST Act, 2017 - writ
petition - preliminary objection by both
St. Govt. as well as Central Govt. counsel -
to avail the remedy of an Appeal u/s 112
of the Act, 2017 - Since, till date Govt. has
not constitution of St. Bench & Areas
Benches in UP - as such preliminary
objection is impermissible. (Para - 5, 8)

(B) Tax Law - Constitution of India,1950 -
Article 226, - Central Goods and Service
Tax Act, 2017 - UP Goods and Service Tax
Act, 2017 - Sections 54, 109 & 112 : -
Writ Petition - against rejection order u/s
section 54 - Remedy is to file statutory
Appeal u/s 112 - Since, till date no
constitution
of
benches
of
Appellate
Tribunal in UP as such writ petitions are
filed in High Court - one bench of Hon'ble
High Court issued direction to constitute
Appellate Tribunal - but same is not
constituted due to interim order passed by
another Bench - 'it is a settle law that, a
coordinate bench cannot sit in appeal over
the final judgment of another coordinate
bench of equal strength - as such - to
handle the alarming situation in UP being
remediless - place this matter before
Hon'ble Chief justice - for referred the
'question of formation of Tribunal in UP' to
a Larger Bench. (Para No. 21, 22)

Writ Petition pending. (E-11)

List of Cases cited: -

1. Oudh Bar Asso. High Court, LKO VS U.O.I. &
ors. (PIL (Civil) No. 6800/2019 order Dt.
31.05.2019),

2. M/s Torqu Pharmaceuticals Pvt. Ltd. Vs
U.O.I. & ors. (Writ Tax No. 665/2018 order
dated 09.02.2021),

3. Awadh Bar Asso. High Court LKO & AnotherVs
UOI & ors. (PIL (Civil) No. 6024/2021 order
dated 04.03.2021),

4. Jai Shri Laxman Rao Patil Vs St. of Mah.
(2021 vol. 2 SCC 785),

5. UOI Vs Cipla Ltd. (2017 vol. 5 SCC 262),
780 INDIAN LAW REPORTS ALLAHABAD SERIES
6. UOI Vs Cynamide India Ltd.& anr.1987 Vol. 2
SCC 720),

7. Bihar Public Service Commissioner Vs Shiv
Jatan Thakur (Dr.) (1994 Suppl. 3 SCC 220),

8. Morgan Stanley Mutual Fund Vs Kartick Das
(1994 Vol. 4 SCC 225),

9. Sachidananda Pandey Vs St. of W.B. & ors.(
1987 Vol. 2 SCC 295),

10. Bombay Dyeing & Manufacturing Co. Ltd. Vs
Bombay Environmental Action Group & ors.
(2005 Vol. 5 SCC 1961).

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. On oral request of learned counsel
for the petitioner, the GST Council, New
Delhi through its Member Secretary is
allowed to be impleaded as respondent
No.5.

2. Notice on behalf of respondent
No.5 has been accepted by the office of
learned Additional Solicitor General.

3. Heard Sri Rahul Agarwal, learned
counsel for the petitioner, Sri B.P. Singh
Kachhwah, learned Standing Counsel for
the State-respondents. Sri Amit Mahajan,
learned Senior Standing Counsel - (Indirect
Taxes) for the respondent Nos.2 and 3 and
Sri S.P. Singh, learned Additional Solicitor
General for the respondent Nos.4 and 5.

4. Briefly stated facts of the present
case are that the petitioner filed refund
application under Section 54 of the Central
Goods and Service Tax Act, 2017/ U.P.
Goods
and
Service
Tax
Act,
2017
(hereinafter referred to as ''the Acts, 2017')
in form GST-RFD-01 on 31.03.2020 for
which an acknowledge receipt in RFD-02
was
issued
by
the
respondents
on
09.04.2020. The refund application of the
petitioner was rejected by the proper officer
by order dated 29.04.2020 in form GSTRFD-06. Aggrieved with the aforesaid
order dated 29.04.2020, the petitioner filed
an appeal before the respondent No.2, i.e.
the First Appellate Authority under the Act,
2017, which was partly allowed by order
dated 29.06.2021. Against the order of the
First Appellate Authority, the petitioner has
a right of appeal under Section 112 of the
Act, 2017 but since GST Tribunal has not
been constituted so far in the State of Uttar
Pradesh, therefore, the petitioner has filed
the present writ petition under Article 226
of the Constitution of India praying to
quash the impugned order dated 29.06.2021
passed by the respondent No.2 in so far as
it rejects the application for refund of the
petitioner for the months prior to March,
2018 to the extent of Rs.7,92,739/-.

Preliminary objection raised by
the Respondents:-

5. Learned standing counsel and the
learned counsel for Indirect Taxes have
raised a preliminary objection as to
maintainability of the writ petition on the
ground that the petitioner has a remedy of
appeal under Section 112 of the Act, 2017.
They along with the learned Additional
Solicitor General of India, jointly submit
that the matter of constitution of State
Bench of Tribunal at Prayagraj and 4 Area
Benches in other parts of Uttar Pradesh is
pending before the respondent No.4 but on
account of interim order dated 04.03.2021
passed by the Division Bench in PIL CIVIL
No.6024 of 2021 (Awadh Bar Association
High Court, Lko Thru Gen.Secy. & Anr.
vs. U.O.I.Thru Secy. Finance Ministry,
New Delhi & Ors.), neither State Bench nor
3 All. M/S Apex Leather, Kanpur Vs. State of U.P. & Ors.
781
Area Benches under Section 109 of the
Act, 2017 could be notified. Therefore, as
and when the State Bench and Area
Benches are notified, the petitioner may
avail the statutory remedy of appeal under
Section 112 of the Act, 2017. It is further
submitted that disputed questions of fact
are involved in the case, which cannot be
decided in writ jurisdiction under Article
226 of the Constitution of India.

6. Learned standing counsel for the
State of U.P. has also produced copy of
instructions dated 08.03.2021 sent by Joint
Commissioner (GST) Commercial Tax,
Headquarter Lucknow.

7. Learned Additional Solicitor
General of India has stated on the basis of
instructions that Government of India
wants to establish State Bench and Area
Benches of GST Appellate Tribunal in the
State of Uttar Pradesh but on account of
interim order dated 04.03.2021 in PIL
CIVIL No.6024 of 2021 (Awadh Bar
Association
High
Court,
Lko
Thru
Gen.Secy. & Anr. vs. U.O.I.Thru Secy.
Finance Ministry, New Delhi & Ors.), the
State Bench and Area Benches of GST
Appellate Tribunal cannot be established in
the State of Uttar Pradesh without leave of
the court. He further submits that against
the judgment dated 31.05.2019 in PIL
CIVIL No.6800 of 2019 (Oudh Bar Asso.
High Court, Lko. Thru General Secretary &
Anr vs. U.O.I. Thru Secy. Ministry Of
Finance & Ors.), the respondent Nos.4 and
5 have filed S.L.P. on 04.09.2020 being
Dairy No.18877 of 2020 (Union of India
vs. Oudh Bar Association, High Court
Lucknow, U.P.), which is still pending and
notices have not yet been issued. Learned
Additional Solicitor General of India
further states that the judgment dated
09.02.2021 in Writ Tax No.655 of 2018
(M/S Torque Pharmaceuticals Pvt. Ltd. vs.
Union Of India And 5 Others) and other 29
connected writ petitions, has not been
challenged so far by the respondent Nos.4
and 5 before the Hon'ble Supreme Court.

Submission on behalf of the
petitioner:-

8. Learned counsel for the petitioner
has referred to the provisions of Section
109 of the Act, 2017, judgment of
Lucknow Bench of this Court dated
31.05.2019 in PIL CIVIL No.6800 of
2019 (Oudh Bar Asso. High Court, Lko.
Thru General Secretary & Anr vs. U.O.I.
Thru Secy. Ministry Of Finance & Ors.),
the judgment dated 09.02.2021 in Writ
Tax No.655 of 2018
(M/S Torque
Pharmaceuticals Pvt. Ltd. vs. Union Of
India And 5 Others) and 29 other connected
writ petitions and the interim order dated
04.03.2021 in PIL CIVIL No.6024 of 2021
(Awadh Bar Association High Court, Lko
Thru Gen.Secy. & Anr. vs. U.O.I.Thru
Secy. Finance Ministry, New Delhi &
Ors.). He submits that firstly, interim order
dated 04.03.2021 passed in PIL CIVIL
No.6024 of 2021 is wholly without
jurisdiction inasmuch as by the aforesaid
interim order, the effect and operation of
the division Bench judgment in the case of
M/S Torque Pharmaceuticals Pvt. Ltd.
(supra) has been suspended by another
Division
Bench,
which
is
wholly
impermissible, secondly, large number of
dealers under the Act, 2017 have been left
remediless due to non-creation of GST
Tribunal in the State of Uttar Pradesh
despite statutory provision of appeal under
Section 112 and this situation has arisen at
the instance of a Bar Association which has
no locus standi to oppose to the constitution
of Tribunal or to render remediless lacs and
lacs of dealers in the garb of the aforesaid
782 INDIAN LAW REPORTS ALLAHABAD SERIES
PIL, thirdly, no public interest can be said
to be involved in the aforesaid two PILs
filed by a Bar Association and fourthly,
that on one hand, the respondent No.5 has
failed to carry out the legislative mandate
of Section 109 of the Act, 2017 and thus,
dealers have been left remediless and on
the other hand, the respondent Nos.1, 2 and
3 have raised a preliminary objection as to
maintainability of the writ petition on the
ground of statutory remedy of appeal,
which is impermissible.

9. We have carefully considered the
submissions of learned counsels for the
parties and perused the records and
instructions.

Discussion:-

10. As per copy of letter of
Additional Chief Secretary, Tax and
Registration dated 21.02.2019 annexed
with the instructions of the Staterespondents, the number of registered
dealers under the Act, 2017 were about
14 lacs as against the 7.5 lacs total
dealers registered under the U.P. VAT
Act. As per instructions, the number of
appeals expected to be filed before the
GST Tribunal
would be
between
12,000 to 15,000 per year, i.e. 1000 to
1250 appeals per month. These, figures
were determined by the State of U.P.
prior to issuance of the aforesaid D.O.
letter dated 21.02.2019 addressed to the
Secretary/ GST Council, Government of
India, New Delhi. It was also mentioned
in the letter that due to non-creation of
Tribunal, 320 writ petitions have been
filed in the High Court against the orders
of the First Appellate Authority. Thus,
from the facts as stated by the State of
U.P. in its own letter dated 21.02.2019,
about 15,000 appeals per year are
likely to be filed before the Tribunal,
which is the last fact finding authority.
However, due to interim order dated
04.03.2021 passed by a Division Bench
in PIL CIVIL No.6024 of 2021 (Awadh
Bar Association High Court, Lko Thru
Gen.Secy. & Anr. vs. U.O.I.Thru Secy.
Finance Ministry, New Delhi & Ors.),
the GST Tribunal could not be notified
by the respondent No.5. For ready
reference the order dated 04.03.2021
passed in PIL CIVIL No.6024 of 2021, is
reproduced below:

"At the threshold, it is stated by
learned Additional Solicitor General of
India that respondent nos. 1 and 2 have
taken a decision to file a Special Leave
Petition to assail correctness of the
judgment dated 09.02.2021 in Writ Tax No.
655 of 2018 passed by a coordinate Bench
of this Court at Allahabad.

This petition for writ is preferred
on behalf of Awadh Bar Association High
Court, Lucknow and Sri Sharad Pathak,
Secretary of the Awadh Bar Association
High Court, Lucknow.

Grievance of the petitioners is
with regard to decision of the Goods and
Services Tax Council on Agenda Item No. 6
undertaken in its 39th meeting held on
14.03.2020.

Several contentions have been
raised
by
learned
counsel
for
the
petitioners while questioning correctness of
the decision aforesaid. Having considered
the same, we deem it appropriate to admit
this petition for writ and to hear the same
finally at earliest.

Accordingly, the writ petition is
admitted for hearing. No post admission
3 All. M/S Apex Leather, Kanpur Vs. State of U.P. & Ors.
783
notice be issued as the parties are already
represented by their counsels.

Having
considered
the
arguments
advanced
and
also
the
instructions communicated to us on behalf
of respondent nos. 1 and 2, we deem it
appropriate to direct respondent nos. 1
and 2 for not establishing Goods and
Services Tax Appellate Tribunal for the
State of Uttar Pradesh without leave of
this Court.

Let this petition for writ be listed
for final disposal on 15.03.2021.

In the meanwhile, respondents, if
desire, may file counter affidavit to the
petition for writ."

11. Section 109 of the CGST Act, 2017
has conferred power upon the Central
Government to constitute Goods and Service
Tax Appellate Tribunal by notification, on
the recommendation of the GST Council. As
per scheme of the Act, the GST Tribunal
would be the last fact finding authority. Nonconstitution of Tribunal has left remediless
lacs and lacs dealers under the Act, 2017 in
the State of Uttar Pradesh since the year
2017, particularly small and medium class
dealers who are not able to afford to file
writ petitions against orders of the First
Appellate Authority for variety of reasons
including high cost of litigation in High
Court.

12. The High Court under Article 226
of the Constitution of India has undoubtedly
very wide powers but such powers cannot be
said to be limitless. That apart, a coordinate
bench cannot sit in appeal over the final
judgment of another coordinate bench of
equal strength and cannot pass an interim
order in such manner which may result either
in staying or directly diluting the effect and
operation of a final judgment which prima
facie appears to have been done by the
interim order dated 04.03.2021 in PIL Civil
No.6024 of 2021.

On the point of Interim Order:-

13. In the case of Jaishri Laxmanrao
Patil vs. State of Maharashtra, (2021) 2
SCC 785 (para-11), Hon'ble Supreme Court
held as under:

"11. It is no doubt true that the Act
providing reservations has been upheld by
the High Court and the interim relief sought
by the Appellants would be contrary to the
provisions of the Act. This Court in Health
for Millions v. Union of India, (2014) 14 SCC
496 held that courts should be extremely
loath to pass interim orders in matters
involving challenge to the constitutionality of
a legislation. However, if the Court is
convinced that the statute is ex facie
unconstitutional and the factors like balance
of convenience, irreparable injury and Public
Interest are in favour of passing an interim
order, the Court can grant interim relief.
There is always a presumption in favour of
the constitutional validity of a legislation.
Unless the provision is manifestly unjust or
glaringly unconstitutional, the courts do
show judicial restraint in staying the
applicability of the same. It is evident from a
perusal of the above judgment that normally
an interim order is not passed to stultify
statutory provisions. However, there is no
absolute rule to restrain interim orders being
passed when an enactment is ex facie
unconstitutional or contrary to the law laid
down by this Court. "
 (Emphasis supplied by us)

14. In Union of India vs. Cipla Ltd.,
(2017) 5 SCC 262 (para-168), Hon'ble
784 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court considered the question of
grant of interim relief where public
interest is involved and held as under:

"168.
Under
these
circumstances, we are clearly of the view
that in matters where public interest is
involved,
the
Court
ought
to
be
circumspect in granting any interim relief.
The consequence of an interim order
might be quite serious to society and
consumers and might cause damage to
public interest and have a long term
impact. We make it clear that it is not our
intention to suggest to any Court how and
in what circumstances interim orders
should or should not be passed but it is
certainly our intention to make it known to
the Courts that the time has come when it
is necessary to be somewhat more
circumspect while granting an interim
order in matters having financial or
economic implications."
 (Emphasis supplied by us)

15. In Union Of India & Anr vs
Cynamide India Ltd. & Anr, (1987) 2
SCC 720 (para-37), Hon'ble Supreme
Court
considered
the
stay
of
implementation of the notifications and
held as under:

"37. We notice that in all these
matters, the High Court granted stay of
implementation of the notifications fixing
the maximum prices of bulk drugs and the
retail prices of formulations. We think that
in matter of this nature, where prices of
essential commodities are fixed in order to
maintain or increase supply of the
commodities or for securing the equitable
distribution and availability at fair prices
of the commodity, it is not right that the
court should make any interim order
staying
the
implementation
of
the
notification fixing the prices. We consider
that such orders are against the public
interest and ought not to be made by a
court unless the court is satisfied that no
public interest is going to be served. "
 (Emphasis supplied by us)

16.

In Bihar
Public
Service
Commissioner Vs. Shiv Jatan Thakur
(Dr.), (1994) Suppl. 3 SCC 220 (para-38),
Hon'ble Supreme Court considered the
validity of interim order passed by the
High Court interfering with the normal
functioning of Bihar Public Service
Commission and held as under:

"38. It is the said interim orders
which are the impugned in the Special
Leave Petitions. We are really unable to
see how the Writ Jurisdiction of the High
Court
under Article
226 of
the
Constitution of India could have been
availed of to make the said interim orders
which
interfered
with
the
normal
functioning
of
the
BPSC
by
the
constitutional functionaries, even if the
High Court desired to have the views of the
BPSC as regards the writ petition filed by
Dr. Thakur against the BPSC and the
functioning of its Chairman. We are indeed
unable to understand now such interim
orders could be regarded as those which
have been made in aid of the final relief, if
any, required to be granted in the Writ
Petition or required to maintain status quo
pending final disposal of the writ petition.
When the nature of the interim order is
seen, it becomes obvious that the High
Court has sought to take over responsibility
of carrying on the functions of the BPSC by
appointing
its
own
chairman
for
conducting a meeting of the BPSC. It is no
doubt open to the Court to reject the
affidavit filed on behalf of the BPSC by the
Chairman on its view that it cannot be
3 All. M/S Apex Leather, Kanpur Vs. State of U.P. & Ors.
785
regarded as the opinion of the BPSC. But,
in a case, even where such decision of the
Commission as a body had been called for,
the High Court was not enabled, in the
purported exercise of its jurisdiction
under Article 226 of the Constitution, to
make such interim orders which would
have made the functioning of the BPSC, a
constitutional institution, a mockery in the
eyes of the general public and exposed its
constitutional functionaries to ridicule. It
is true that Article 226 of the Constitution,
empowers the High court to exercise it
discretionary
jurisdiction
to
issue
directions, orders or writs, including writs
in the nature of habeas corpus, certiorari,
quo warranto and mandamus or any of
them for the enforcement of the rights
conferred under the Constitution or for an
other purpose, but such discretion to issue
directions or writs on orders conferred on
the High Court under Article 226 being a
judicial discretion to be exercised on the
basis of well-established judicial norms,
could not have been used by the High
Court to make the said interim orders
which could not have any way helped or
aided the Court in granting the main relief
sought in the writ petition. The said interim
orders, therefore, not being those made to
maintain the status quo or undo an order,
the review of which is sought, so that the
ultimate relief to be granted to the party
approaching it, may not become futile, they
become
wholly
unsustainable.
Such
interim orders are made by the High
Court, to say the least, without realisation
that they had the effect of putting the
Chairman and its Members to ridicule in
the eyes of the general public and making
a constitutional institution of the BPSC a
mockery. For the said reasons, the interim
orders impugned in the S.L.P.s cannot be
sustained and are liable to be set aside."
 (Emphasis supplied by us)

17. In the case of Morgan Stanley
Mutual Fund vs Kartick Das, (1994) 4
SCC 225 (para-36), Hon'ble Supreme
Court laid down certain factors which
should weigh with the court in grant of
ex parte injunctions, as under:

"6. As a principle, ex parte
injunction could be granted only under
exceptional circumstances. The factors
which should weigh with the court in the
grant of ex parte injunction are-

(a)
whether
irreparable
or
serious mischief will ensue to the plaintiff;

grant of it would involve;

(c) the court will also consider
the time at which the plaintiff first had
notice of the act complained so that the
making of improper order against a party
in his absence is prevented;

(d)
the
court
will
consider
whether the plaintiff had acquiesced for
sometime and in such circumstances it will
not grant ex parte injunction;

(e) the court would expect a party
applying for ex parte injunction to show
utmost
good
faith
in
making
the
application.

(f) even if granted, the ex parte
injunction would be for a limited period of time.

(g) General principles like prima
facie case balance of convenience and
irreparable loss would also be considered
by the court."

When
a
public
interest
litigation is usually entertained?
786 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In the case of Malik Brothers vs
Narendra Dadhich & Ors, (1999) 6 SCC
552 (para-2), Hon'ble Supreme Court
considered the question when a public
interest litigation may be entertained by a
court and held as under:-

"2.......Before embarking upon an
inquiry into the legality of the impugned
judgment of the High Court, it is necessary
to bear in mind that a public interest
litigation is usually entertained by a court
for the purpose of redressing public injury,
enforcing public duty, protecting social
rights and vindicating public interest. The
real
purpose
of
entertaining
such
application is the vindication of the rule of
law, effective access to justice to the
economically weaker class and meaningful
realisation of the fundamental rights. The
directions and commands issued by the
courts of law in a public interest litigation
are for the betterment of the society at
large and not for benefiting any individual.
But if the court finds that in the garb of a
public
interest
litigation
actually
an
individual,s interest is sought to be carried
out or protected, it would be the bounden
duty of the court not to entertain such
petition as otherwise the very purpose of
innovation of public interest litigation will
be frustrated. It is in fact a litigation in
which a person is not aggrieved personally
but brings an action on behalf of down-
trodden mass for the redressal of their
grievance......" (Emphasis supplied by us)

19. In the case of Sachidananda
Pandey vs State Of West Bengal & Ors,
(1987) 2 SCC 295 (para-61), Hon'ble
Supreme Court held as under:

"61. It is only when courts are
apprised of gross violation of fundamental
rights by a group or a class action or when
basic human rights are invaded or when
there are complaints of such acts as shock
the judicial conscience that the courts,
especially this Court, should leave aside
procedural
shackles
and
hear
such
petitions and extend its jurisdiction under
all available provisions for remedying the
hardships and miseries of the needy, the
under-dog
and
the
neglected..........................."
 (Emphasis supplied by us)

20. In the case of Bombay Dyeing &
Manufacturing Co. Ltd vs Bombay
Environmental
Action
Group
and
others, (2005) 5 SCC 1961 (para-22),
Hon'ble Supreme Court explained that
when an interim order may be passed in
a public interest litigation and held as
under:

"22.......But,
there
cannot
be
doubt or dispute whatsoever that before an
interim order is passed and in particular a
public interest litigation, the court must
consider the question as regard existence
of a prima facie case, balance of
convenience as also the question as to
whether the writ petitioners shall suffer an
irreparable injury, if the injunction sought
for is refused. The courts normally do not
pass an interlocutory order which would
affect
a
person
without
giving
an
opportunity of hearing to him. Only in
extreme cases, an ad interim order can be
passed but even therefor, the following
parameters as laid down by this Court in
Morgan Stanley Mutual Fund etc. vs.
Kartick Das etc. [(1994) 4 SCC 225] are
required
to
be
complied
with:....."
(Emphasis supplied by us)

21. In view of alarming situation
created due to non-establishing of State
Bench and Area Benches of GST Tribunal
3 All. Bharat Mint & Allied Chemicals, Budaun Vs. Commisioner Commercial Tax & Ors.
787
in the State of Uttar Pradesh, rendering the
entire class of dealers remediless under the
Act, 2017 from availing statutory remedy
of appeal under Section 112 of the Act,
2017, we are of the view that under the
facts and circumstances and prevailing
situation, the matter with regard to the
following questions are referred to Larger
Bench:-

(i) Whether by interim order dated
04.03.2021 in PIL CIVIL No.6024 of 2021
(Awadh Bar Association High Court, Lko
Thru Gen.Secy. & Anr. vs. U.O.I.Thru Secy.
Finance Ministry, New Delhi & Ors.),
directing for not establishing GST Appellate
Tribunal for State of Uttar Pradesh without
leave of the court, could be passed in conflict
with the final judgment dated 09.02.2021 in
Writ Tax No.655 of 2018 passed by the
Division Bench?

(ii) Whether under the facts and
circumstances of the case and in the interest
of dealers in State of Uttar Pradesh under the
CGST Act/ U.P.GST Act, 2017, a direction
needs to be issued immediately to the
respondent No.4 to notify the State Bench
and Area Benches of GST Appellate Tribunal
in the State of Uttar Pradesh, within a time
bound period so that persons/ dealers may
avail statutory remedy of appeal under
Section 112 of the CGST Act/ U.P. GST Act,
2017 and they may not suffer further?

(iii) Establishment of the State
Bench of GST Appellate Tribunal at
Prayagraj and its four Area Benches in the
State of Uttar Pradesh in terms of the final
judgment of the Division Bench dated
09.02.2021 in Writ Tax No.655 of 2018 (M/s
Torque Pharmaceuticals Pvt. Ltd. vs. Union
of India and 5 others) and other 29 connected
writ petitions?

22. Let this order alongwith the
records of the writ petition be placed before
Hon'ble the Chief Justice for constitution of
a Larger Bench so that people in the State
of Uttar Pradesh having right to avail
remedy of appeal under Section 112 of the
CGST/ U.P. GST Act, 2017 may avail the
statutory remedy and may not remain
remediless.
----------
(2022)03ILR A787
ORIGINAl JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 1029 of 2021

Bharat Mint & Allied Chemicals, Badaun
 ...Petitioner
Versus
Commissioner Commercial Tax & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Abhinav Mehrotra, Sr Satya Vrata
Mehrotra

Counsel for the Respondents:
C.S.C., A.S.G.I.

(A) Tax Law - Constitution of India,1950 -
Article 226, - Central Goods and Service
Tax Act, 2017 -U.P. Goods & Service Tax
Act, 2017 - Sections 74, 75(4) & 107 -
Validity of impugned assessment order -
imposing demand of Tax, interest &
penalty without affording opportunity of
hearing to the Assesse - writ petition -
patent breach of principle of natural
justice - impugned order quashed with
cost of Rs. 10,000/- matter remitted back
to proceed afresh in accordance with law,
after affording opportunity of hearing.
(Para - 9, 17, 18, 19)