TMI Blog2023 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeal) further observed that filing of certified copy of the order against which the appeal is filed has not been complied with and further the appeal is not signed by the proprietor nor has the Appellant submitted any authority letter of the signatory. Therefore, the Commissioner (Appeal) held that the appeal is to be rejected on this ground itself. The Commissioner (Appeal) was not justified in deciding the matter on merits after having come to a conclusion that the appeal is to be rejected on the ground of no proof of pre-deposit, failure to file certified copy of the order and the appeal not having been authenticated as per rule 26(2)(a) of the CGST Rules. If the appeal is rejected on this ground, then any adjudication on merits is not permissible by the Appellate Authority and would be without jurisdiction. The contention raised that the procedure for processing the refund application and for cancellation of registration has not been followed and thereby objecting the very procedure adopted by the adjudicating authority was not canvassed before the lower authorities by the Petitioner. The Order in Appeal dated 17th June 2022 is set aside and restored to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me registered office address. The said show cause notice refers to the refund application made by the Petitioner. In the said show cause notice, it is alleged that IJM Exporters has availed ITC on goods purchased from non-existing entities and passed on said ITC to the Petitioner since IJM Exporters have sold the goods to the Petitioner, who has made a claim for refund of ITC on export of the goods purchased from the IJM Exporters. The Petitioner and IJM Exporters have wrongly availed the ITC and, therefore, a show-cause was issued. In the said show cause notice, the Petitioner was required to show cause why the GST registration should not be cancelled under section 29(2) of the CGST Act, 2017 and ITC amounting to Rs. 1,01,72,874/- should not be demanded along with interest and penalty. (v) On 24th April 2021, the Petitioner replied to the aforesaid show cause notice and gave its submissions for dropping the said show cause notice on the grounds more particularly set out therein. The Petitioner stated that they have purchased the goods from IJM, who is registered with the GST Department. The goods have been purchased in accordance with invoices issued as per CGST Act and payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund application is provided under rules 89 to 97A of the CGST Rules, 2017. The Petitioner submitted that the procedure prescribed under the rules has not been followed, but on the contrary, a demand of Rs. 1,01,02,741/- has been raised in addition to interest and penalty. The Petitioner submits that show cause notice under section 74 could not have been issued for processing the refund application. Similarly, section 29 of the CGST Act, 2017 provides for cancellation or suspension of registration and Rules 21A, 22 and 23 of the CGST Rules prescribes the procedure to be followed for cancellation/suspension of the Registration. The Petitioner submits that the said procedure has also not been followed and the registration cannot be cancelled by issuing a notice under section 74 of the CGST Act. The Petitioner has stated that no demand could have been raised while processing the refund application, but at the most an order could have been passed rejecting the refund application. The Petitioner has relied on the decision of the coordinate bench of this Court in the case of Knowledge Capital Services Ltd. Vs. Union of India Ors. 2023-TIOL-476-HC-MUM-GST, in support of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach document furnished online shall be signed or verified through electronic verification code in the case of an individual, by the individual himself or where he is absent from India, by some other person duly authorised by him in this behalf and where the individual is mentally incapacitated from attending to his affairs by his guardian or by any other person competent to act on his behalf. 9. The Commissioner (Appeal) in his order dated 17th June 2022 in para 5.4 to 5.6 observed that the Appellant has not provided challan or proof of having made pre-deposit. The Commissioner (Appeal) further observed that filing of certified copy of the order against which the appeal is filed has not been complied with and further the appeal is not signed by the proprietor nor has the Appellant submitted any authority letter of the signatory. Therefore, the Commissioner (Appeal) held that the appeal is to be rejected on this ground itself. However, the Commissioner (Appeal) after having given a finding that the appeal is required to be rejected on these grounds recorded a finding on the merits of the case and upheld the cancellation of registration. The Commissioner (Appeal) also observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava AIR 1961 SC 932, has observed in paragraphs 5 and 14, which reads as thus:- 5. The requirement that a certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent. 14. No hard and fast rule or general applicability can be laid down for dealing with appeals defectively filed under O. 41. R. 1. Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. If at the time when the appeal is preferred a decree has already been drawn up by the trial court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would, however, be substantially different if at the time when the appeal is presented before the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Remfry Sons Vs. Commissioner of Income-Tax [2005] 276 ITR 1 (Del). 15. Very recently, the Orissa High Court in the case of Ashishkumar Kar Vs. Central Board of Excise and Customs (2023) 152 Taxmann.com 642 (Orissa), held that if the Appellant files an appeal in ignorance of position that he has to file certified copies of adjudication order then Appellate Authority has to intimate Appellant with regard to defect by giving him opportunity to rectify the same within the stipulated time. If the Appellant is not directed on non-supply of certified copy of adjudication order then such an order would be in violation of principal of natural justice. 16. We may also observe that the contention raised before us that the procedure for processing the refund application and for cancellation of registration has not been followed and thereby objecting the very procedure adopted by the adjudicating authority was not canvassed before the lower authorities by the Petitioner. 17. In view of above, we pass the following order:- (a) The Order in Appeal dated 17th June 2022 is set aside and restored to the file of the Commissioner (Appeal). (b) Commissioner (Appeal) will iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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