TMI Blog2020 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... nd uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure to file the appeal manually - In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. The impugned order passed by the appellate authority is required to be quashed and set aside by condoning the delay in filing of the appeal manually by the petitioner in absence of availability of the order passed by the adjudicating authority on the GST portal - Petition allowed. - R/Special Civil Application No. 15607 of 2019 - - - Dated:- 5-3-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Ms. Kanupriya bhargav With Ms Divya Bharadwaj And Mr Maulik Nanavati For Ms Niyant R Bhimani for the Petitioner Mr Nirzar S Desai for the Respondent JUDGMENT PER : HONOURABLE MR. JUSTICE BHARGAV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - since copy of invoices in respect of the supplies made to the OPAL were not submitted. 3.4) The petitioner replied to the said show cause notice by its letter dated 6th July, 2018 stating that the amount of refund as stated in the notice was pertaining to the supply made to the OPAL for which invoices have not been endorsed by the SEZ authority despite several reminders. 3.5) Pursuant to the refund application, the adjudicating authority sanctioned refund to the tune of ₹ 2,24,95,641/- on 2nd August, 2019 however, refund amount to the tune of ₹ 41,59,625/- was held to be inadmissible because of the non submission of the endorsed invoices for the supplies made to OPAL. 3.6) On 2nd August, 2018, the petitioner received the endorsed copies of the invoices and thereafter, the petitioner immediately approached the adjudicating authority for taking on record the endorsed copy of invoices. However, the adjudicating authority did not take the documents into consideration on the ground that the refund order has already been signed and hence, no amendment can be made in the same. 3.7) The petitioner thereafter at various occasions approached the adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned advocate Mr. Maulik Nanavati for Mr. Niyant Bhimani for the petitioner submitted that the appeal is required to be filed under section 107 of the CGST Act read with Rule 108(1) of the CGST Rules wherein it has been provided that appeal can be filed electronically only or in the manner notified by the Commissioner of GST. It was submitted that the petitioner did not receive electronic copy of the order dated 2nd August, 2018 passed by the adjudicating authority, and therefore, the petitioner could not file the appeal electronically as per the prescribed procedure laid down under the CGST Act and the CGST Rules. It was submitted that the limitation period of three months prescribed under section 107 of the CGST Act would start only from the date of communication of order to the petitioner in electronic form. In such circumstances, the Commissioner (Appeals) was not justified in rejecting the appeal on the ground of limitation. 4.1) It was submitted that in absence of any other procedure notified for filing the appeal, the only course of preferring the appeal was to file it by electronic mode and in such circumstances as the order passed by the adjudicating authority was not up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never resolved. 4.5) Learned advocate for the petitioner submitted that the petitioner is a public sector undertaking and has clear intention to abide the laws by following the procedures under the CGST Act and delay that has resulted in filing of the appeal against the impugned order was solely due to the bona fide belief of the petitioner that appeal can only be filed electronically in terms of provisions of the GST laws. It was therefore, submitted that in such circumstances, there was a delay in filing the appeal by the petitioner. Learned advocate for the petitioner further submitted that section 109 of the CGST Act provides establishment of National Bench, Regional Bench and State Bench to hear the appeals against the order passed by the appellate authority, but at present, there is no such Bench established in Gujarat under GST laws and therefore, the petitioner has approached this Court by preferring this petition with the aforesaid prayers. 5. On the other hand, learned Standing Counsel Mr. Nirzar Desai vehemently opposed the petition relying upon the averments made in the affidavit in reply filed on behalf of the respondents no. 2 to 4 and raised the preliminary ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order. (3) Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74. (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year. (14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority. (15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure to file the appeal manually. In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. Merely because the petitioner has filed the appeal manually after exhausting all the efforts to ensure filing of the appeal in proper and legal manner, the impugned order rejecting such appeal on the ground of limitation is not sustainable as the petitioner cannot be penalised for lack of clarity of the provision when the new law is enacted. From the facts on record, it also emerges that the petitioner has taken all the steps for proper filing of the appeal immediately after issuance of the order passed by the adjudicating authority till the filing of the appeal. Therefore, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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