9911796707
TMI Blog2024 (12) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... e from various refund applications filed by the Petitioner before the Respondent No.3-Assistant Commissioner CGST (hereinafter 'Proper Officer') claiming the accumulated input credit for the months of May, 2019 to December, 2019 and January, 2020 to May, 2020. These refund applications were disposed of by the Proper Officer vide various orders (hereinafter 'Orders in Original'). The tabular statement showing the various dates on which the Orders in Original were passed by the Proper Officer in relation to the Petitioner's refund applications, as well as the corresponding dates on which appeals against said orders were filed, both physically and online, is set out below: A. OIA No. 105 to 115 dated 18th April, 2023 S.No. Relevant period and OIO against which appeal filed Appeal No. Date of online filing Date of physical filing 1. May 2019 OIO dated 19.08.2021 321/GST/Appeal-1/East/2022 dated 15.11.22 17.11.2021 15.11.2022 2. June 2019 OIO dated 26.08.2021 320/GST/Appeal-1/East/2022 dated 15.11.22 17.11.2021 15.11.2022 3. July 2019 OIO dated 16.09.2021 319/GST/Appeal-1/East/2022 dated 15.11.22 09.12.2021 15.11.2022 4. Aug 2019 OIO dated 16.09.2021 318/GST/Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 - Additional Commissioner, CGST, under Section 107 of CGST Act, 2017. For the present purposes Section 107 (1), Section 107 (4) from CGST Act, 2017 are relevant and are set out below: "107. Appeals to Appellate Authority.- (1) 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. xxxx (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month" 6. As per Section 107(1) and Section 107(4) of the CGST Act, 2017, the total period available to the Assessee for preferring an appeal is three months plus one month. The other relevant provisions on limitation in the present case would be Rule 108 of CGST Rules, 2017 (both pre and post amendment). Rule 108 of the CGST Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provided further that where the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-01, the date of submission of such copy shall be considered as the date of filing of appeal" 8. As per pre-amended Rule 108 of CGST Rules, the appeal could be filed either electronically or otherwise. Upon filing of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the said delay can be condoned or not. Ld. Counsel for the Petitioner has relied upon the following decisions to contend that the various High Courts, pre-amendment, have condoned delays of a similar nature on the ground that the requirement of physical filing was merely a 'procedural requirement'. Pre Amendment judgements High Court Cases Orissa High Court M/s Atlas PVC Pipes Ltd. v. State of Odisha & Ors. 2022 (7) TMI 130-Orissa High Court WP(C) No. 14163/2022 Madras High Court M/s PKV Agencies v. Appellate Deputy Commissions (GST) (Appeals) 2023 (2) TMI 932-Madras High Court. 13. The Ld. Orissa High Court in its judgement dated 29th June 2022 in M/s Atlas PVC Pipes Ltd. (supra) in a similar appeal, deciding in favour of the assessee observed as under: "6.11. Investigating further into the instant matter, this Court finds that Rule 108 (3) has not prescribed for condonation of delay in the event where the petitioner would fail to submit certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act 1963, in the context of supply of certified copy within period stipulated in sub-rule (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the date of filling of the appeal shall be the date of the submission of such copy" After amendment, the amended rule is reproduced as under- "(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filling of appeal: Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL 02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order. If that were to be so, the substitution in order to clarify would have retrospective effect and accordingly, the substituted Rule ought to apply in the case of petitioner as well." 17. Based on the above judgements, the submission being made on behalf of the Petitioner is that the amendment dated 26th December 2022 which was made in Rule 108 shows that the said amendment was merely clarificatory in nature. It was merely clarifying the rule as it existed and, therefore, the benefit of online filing along with the electronic copy of the decision ought to be considered as sufficiently within the limitation period. The ld. Counsel has also relied upon the observations made in Hitachi (supra) to argue that since the substitution was to merely provide clarity to the requirement of submission of the certified copy of the order which is a procedural requirement, the Appellant cannot be non-suited on the ground of limitation. 18. This Court had issued notice on 16th December, 2024 and Mr. Aditya Singla, ld. Counsel had accepted notice. He submitted on behalf of the Department that in this case clearly, the benefit of the amended rule ought not to be extended to the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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