2024 (3) TMI 1310 - HC - GST

Maintainability of petition - appealable order or not - non-constitution of the Appellate Tribunal - petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of sub-sections-8 9 of section 112 of the CGST/OGST - 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. In tune with the said Removal of Difficulties Order dated 03.12.2019 the Central Board of Indirect Taxes and Customs GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal - Taking into account the 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 conditions imposed. The writ petition stands disposed of.

Summary

Issues involved:
The issues involved in this case pertain to the appealability of an order passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act) under Section 112 of the Acts, the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, and the statutory remedy of Appeal available to the petitioner.

Summary:

Issue 1: Appealability of the Order
The order impugned in the writ petition is appealable under Section 112 of the CGST/OGST Act, 2017. Due to the non-constitution of the Appellate Tribunal as required by law, the petitioner is deprived of its statutory remedy of Appeal and the corresponding benefits under sub-sections 8 & 9 of section 112 of the Acts.

Issue 2: Removal of Difficulties Order
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 the absence of the Appellate Tribunal. This Order clarifies the calculation of time periods for filing appeals in cases where the Tribunal is not constituted.

Issue 3: Circular for Appeal Procedure
A circular issued by the Central Board of Indirect Taxes and Customs provided further clarification on the appeal process in light of the non-constitution of the Appellate Tribunal. The circular specified that the time limit for filing an appeal would be counted from the date the President or State President of the Tribunal enters office.

Judgment:
Considering the Removal of Difficulties Order and the circular, the Court disposed of the writ petition with the following directions:
1. The petitioner is granted the statutory benefit of stay on the deposit of a certain amount, ensuring they are not deprived of the benefit due to the non-constitution of the Tribunal.
2. The petitioner must file an appeal under Section 112 of the Acts once the Tribunal is constituted, observing all statutory requirements.
3. If the petitioner chooses not to file an appeal within the specified period after the Tribunal's constitution, the authorities are free to proceed further in accordance with the law.

With the above directions and liberty granted, the writ petition was disposed of, and an urgent certified copy of the order was to be issued as per rules.