GST Appeal, Goods and Services Tax - GST

[HITESH SHAH]

One of My client has received the order. Date of Order in Original :- 31/03/2023 Date of Order received by post:- 23/06/2023 Date of Order Uploaded on GST Portal:- 29/12/2023. Date of filling Appeal 24/01/2024. In this scenario, is the appeal time-barred or not? Kindly provide the relevant notification or any case studies." Appeal Rejected by the officer on ground that appeal is time barred.

Posts / Replies

[KASTURI SETHI]

The Order-in-Appeal is legally correct. The tax payer received the Order-in-Original on 23.6.23 and the appeal should have been filed before the expiry of 90 days. You cannot take the shelter of the date of uploading on Common Portal System. The mode of service of the Order by registered post or speed post is legally valid as per Section 169 (1) (b) of CGST Act.

2025 (1) TMI 517 - MADRAS HIGH COURT-UDUMALPET SARVODAYA SANGHAM. VERSUS THE AUTHORITY, UNDER SHOP AND ESTABLISHMENT ACT/ DEPUTY COMMISSIONER OF LABOUR, COIMBATORE.

[KASTURI SETHI]

Here is a case law in your favour :-

2020 (11) TMI 749 - MADHYA PRADESH HIGH COURT - M/S. SHRI SHYAM BABA EDIBLE OILS VERSUS THE CHIEF COMMISSIONER AND ANOTHER

 

[KASTURI SETHI]

Also read para nos.6,7 & 8 of the following case law :-

2021 (12) TMI 1039 - KERALA HIGH COURT

Other Citation: [2022] 96 G S.T.R. 3 (Ker)

NELLISSERY & CO., VERSUS STATE TAX OFFICER, PALAKKAD, STATE OF KERALA, GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI

Service of order - Original copy of order was not received or lost - Direction to serve a copy of an Order issued under Section 129(3) of the Central Goods and Services Tax Act - Non-invocation of bank guarantee furnished by the petitioner - whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act? - HELD THAT:- As per the statutory prescription and going by the averments in the counter affidavit as well as the documents produced, it is evident that petitioner can be deemed to have been tendered with the order under Section 129(3) on 03.02.2020. The fiction that is created does not leave any room for doubt and since the tendering of notice is by registered post with acknowledgement due, there is no scope for even assuming that the order was not served on the petitioner. In this context, this Court notices the pleading of the petitioner that he had received the notice for hearing scheduled on 24.01.2020. The copy of dispatch register showing that the order was dispatched on 28.01.2020 and the copy of acknowledgement card produced as Ext.R1(c), fortifies the above conclusion - the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020.

Having regard to the contention that petitioner had not received the order or that he may have misplaced the order due to which petitioner ought to be given a certified copy to enable him to pursue appropriate statutory remedy is a contention which merits consideration - Since the petitioner’s right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal, then certainly it is incumbent upon the first respondent to issue a certified copy to the petitioner.

The first respondent is directed to issue a certified copy of the order to the petitioner in accordance with law forthwith - petition disposed off.

No.- W.P.(C) No.21209 of 2021

Dated.- November 3, 2021

[Yash Shah]

As per section 107(1) of the CGST act,  - Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

As per section 169(1) of the CGST act Any decision, order or other communication under this act or rules made thereunder shall be served inter alia by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; 

As per section 169(2) of the CGST act, "Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1)"

In case law of New Grace Auto Mech Products Pvt. Ltd. vs State Tax Officer - 2023 (1) TMI 288 - MADRAS HIGH COURT held that method of service adumbrated therein are not conjunctive but are alternate method of service.

Also in case of A.S. jewellers V. State Tax officer 2022 (1) TMI 49 - KERALA HIGH COURT Where court held that Section 169 (1)(b) provides for service by registered post with acknowledgement due, while sub-clause (2) creates a deeming fiction as per which every decision or order shall be deemed to have been served on the date on which it is tendered as provided in sub-section (1).

Hence the combined reading of above section, and judgement it is inferred that the date of communication would be considered on when order is communicated by any of method provided under section 169(1) further in 169(3) where such order is sent by registered post or speed post, it shall be deemed to have been received at the expiry of the period normally taken by such post in transit unless contrary is proved.

As in our case order is received by post on 23/06/2023 therefore the date of communication of order shall also be 23/06/2023 and date of filling appeal is 24/01/2024 since appeal shall be filled within 3 month from date of communication of order so the time limit to file an order has been expired hence the officer's view that appeal is time barred is correct as per my humble opinion and discretion.