The Hon’ble High Court of Calcutta vide its order dated 10.11.2022 in the matter of Green Fizz Beverages Private Limited Vs. State of West Bengal & Ors. in M.A.T. No. 1364 of 2022 with I.A. No. CAN 1 of 2022, ordered to restore and hear the Writ petition filed after 3 ½ years finding that it is elementary principle that none stands to benefit by lodging an appeal or a petition belatedly.  Unless there are material to show that owing to mala fide intentions and with certain ulterior, the petition was belated filed.  Moreover, there is no such allegation against the Petitioner.  Therefore, the writ petition should be heard and decided on merits rather being rejected on the ground of delay and laches.

The Appellant filed the appeal before the Hon’ble High Court challenging the order passed in the W.P.A. 15484 of 2022, whereby the writ petition filed against the order passed by the appellate authority, namely, Senior Joint Commissioner of State Tax Appeals, Central Section, Kolkata and Bureau of Investigation, Unit – II dated 21st December, 2018, was dismissed by the Hon’ble Single Bench on the ground that the writ petition was filed after a period of 3 and ½ years.

It was submitted on the behalf of the Appellant that against the order passed by the appellate authority, the appellant has remedy of filing an appeal before the GST Tribunal, which is yet to be constituted in the State of West Bengal.  Therefore, it was contended that the limitation would start only after a notification is issued constituting the Tribunal.

Held: –

• The Hon’ble Court after considering the submissions made and facts of the case, was neither persuaded to accept the submission advanced on the behalf of the appellant nor was convinced with the conclusion arrived by the learned Single Bench in dismissing the writ petition filed by the appellant solely on the ground of delay of 3 and ½ years.
• It was found by the Hon’ble Court that the dispute in the instant matter is a classification dispute as to whether the product manufactured and marketed by the appellant is a carbonated beverage with fruit juice or a carbonated beverage. Further the issue being recurrent issue and the Tribunal being a last fact-finding authority, the appellate remedy before the first appellate authority is not only efficacious but an effective remedy as well. Since the Tribunal is yet to be constituted, the appellant having left with no other remedy is compelled to approach this Court invoking its jurisdiction under Article 226 of the Constitution of India.
• It was observed by the Hon’ble Court that delay and laches are not to be calculated solely by the length of the time taken by the party to approach the legal forum. Further it is elementary principle that none stands to benefit by filing an appeal or petition belatedly.   
• It was further found that Unless and Until there is any material to show that the petition was filed belatedly with mala fide intentions and certain ulterior motive and when there is no such allegation against the Appellant, considering the peculiar facts and circumstances of the case, the writ petition should be heard and decided on merits rather being rejected on the ground of delay and laches, subject to, the appellant put on certain conditions.
• Besides, it was noted by the Hon’ble Court that the appellant had already deposited 10% of the disputed tax while filing an appeal before the Appellate authority and had there been Tribunal in existence, the Appellant for the purpose of filing appeal, would have deposited further 20% of the disputed tax before the Tribunal.
• It was found by the Hon’ble Court that as already mentioned, the dispute in the instant matter is of classification of goods manufactured and marketed by the appellant, and adjudication is required to be done. However, unless the respondents file their affidavit, the Court will not be in a position to give a binding decision.

The Hon’ble Court with the above findings, allowed the appeal and restored the writ petition with a direction to the appellant to pay 20% of the disputed tax and also furnish a bond to the satisfaction of the appropriate authority for the balance amount of the tax in dispute.  If both the above conditions are complied with, the appellant will be entitled to be heard in the writ petition for which an affidavit-in-opposition is directed to be filed by the appropriate respondent within a period of 12 weeks from the date on which the appellant complies with the aforementioned conditions.  Further on compliance of afore-mentioned conditions, no coercive action can be taken against the appellant for the recovery of balance amount of tax, penalty and cess.