2024 (5) TMI 756 - HC - GST

Maintainability of petition - appealable order or not - non-constitution of the Appellate Tribunal - HELD THAT - The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently acknowledging the absence of constitution of Appellate Tribunal in exercise of the power conferred under section 172 of the CGST Act 2017 the Government of India based on the recommendation made by the G.S.T. Council has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order 2019 on 03.12.2019. Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March 2020 it is deemed proper in the interest of justice to dispose of this writ petition. Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute or deposit of the same if not already deposited in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act for the petitioner cannot be deprived of the benefit due to non-constitution of the Tribunal by the respondents themselves. The recovery of balance amount and any steps that may have been taken in this regard will thus be deemed to be stayed - The statutory relief of stay on deposit of the statutory amount in the opinion of this Court cannot be open ended. For balancing the equities therefore the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities the petitioner would be required to present/file his appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and made functional and the President or the State President may enter office. The writ petition stands disposed of.

Summary

Issues involved: Non-constitution of Appellate Tribunal under CGST/OGST Act, 2017 leading to deprivation of statutory remedy of Appeal and corresponding benefits.

Summary:
The High Court of Orissa considered a writ petition challenging an order passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act) which was appealable under Section 112 of the Acts. Due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, the petitioner was deprived of its statutory remedy of Appeal and the corresponding benefits of subsections- 8 & 9 of section 112. The Government of India, based on the recommendation of the GST Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 to address this issue.

In line with the Removal of Difficulties Order, the Central Board of Indirect Taxes and Customs, GST Policy Wing issued a circular providing clarification on the appeal process considering the non-constitution of the Appellate Tribunal. The Court, with the consent of the parties, disposed of the writ petition by granting the petitioner the statutory benefit of stay on deposit of a sum equal to 20 percent of the remaining amount of tax in dispute. The Court also required the petitioner to file an appeal under Section 112 of the Acts once the Tribunal is constituted and made functional. Failure to do so would allow the respondent-Authorities to proceed further in the matter in accordance with the law.

The Court issued necessary directions and observations, and the writ petition was disposed of with an urgent certified copy of the order to be issued as per rules.