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2021 (4) TMI 174 - HC - GSTCondonation of delay in filing an appeal before AAAR against the order of AAR - Doctrine of Merger - scope of time limitation under Income Tax Act and GST Act - Scope of Notification issued by the CBDT dated 03.04.2020 - Classification of services - royalty paid in respect of Mining Lease - HELD THAT:- The undisputed facts of the case reveals that the petitioner on 27.08.2018 has filed an application in terms of section 97 of CGST Act, 2017 seeking a ruling on the questions in respect of payment of tax on the royalty paid in respect of the mining lease and the contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) and an order was passed in respect of Advance Ruling on 21.09.2019. An appeal was preferred before the AAR on 22.06.2020 and the AAR has passed an order holding that the appeal is not maintainable - The statutory provisions governing the field provides for a remedy of appeal and the petitioner has preferred an appeal on 22.06.2020 and the AAAR has passed an order dismissing the appeal on 21.09.2020 which is impugned in the present writ petition. Notification issued by the CBDT dated 03.04.2020 is certainly not a Notification extending the period of limitation provided under the statute in respect of appeals. Reliance is also placed upon the judgment delivered by the Hon’ble Supreme Court in the case of HIND WIRE INDUSTRIES LTD. VERSUS COMMISSIONER OF INCOME TAX, WEST BENGAL-V. [1995 (1) TMI 415 - SUPREME COURT]. It was a case under the Income Tax Act. The Supreme Court has held that “the word ‘order’ in the expression ‘order sought to be amended’ does not necessarily mean the original order and may mean the rectified order, therefore, second rectification within four years from the order of rectification was justified.” - In the aforesaid case, there was no outer limit prescribed in the matter of limitation. In the present case, it has been provided under the statute that delay can be condoned only up to 30 days. In the considered opinion of this court, such application for rectification of the mistake was dismissed summarily there was no error apparent, hence, the doctrine of merger has not taken place. Therefore, the judgment relied upon does not help the petitioner in any manner. The cases relied upon by the learned counsel for the petitioner relate to those cases where the issue of doctrine of merger was involved and the cases relate to Income Tax Act or Central Excise Act, 1944. The provisions under both the Acts are not identical to the provisions dealing with limitation under the CGST Act, 2017. The provisions under the CGST Act, 2017 provides that the delay cannot be condoned beyond the period of 60 days. The Hon’ble Supreme Court in the case of Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited and others [2017 (3) TMI 1628 - SUPREME COURT] where it was held that the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution. Thus, the AAR was justified in rejecting the appeal on the ground of limitation as it was not having power to condone the delay beyond 30 days. Therefore, this Court also does not find reason to condone the delay keeping in view the statutory provisions - thus this court does not find any reason to interfere with the order passed by the AAR as the appeal itself was preferred beyond the expiry of limitation period. Petition dismissed.
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