2019 (1) TMI 1418 - HC - GST

Maintainability of condonation of delay application - period of limitation in filing first appeal - Section 107 of the UPGST Rules, 2017 - Held that - In the instant case, there is no dispute as to the date of the communication order passed by the Assessing Authority which may be relevant for the purpose of start point of period of limitation to file an appeal - Consequently and clearly the first appeal filed by the petitioner against the order dated 03.12.2018 was beyond the period for which delay may have been condoned, by about nine days - there is no error in the order of the appellate authority dismissing the appeal as time barred. Process amounting to manufacture or not - activity of running a brick klin and that the entire production of bricks - Held that - In the very nature of the activity of running that business, various qualities of bricks emerge in the manufacturing process, for various reasons - matter requires consideration - Notices issued.

Summary

Issues:
1. Condensation of delay in filing first appeal under Section 107 of U.P. Goods and Services Tax Rules, 2017.
2. Applicability of Supreme Court and Full Bench decisions on delay condonation applications.
3. Jurisdiction of the writ Court against the original order dated 03.12.2018.

Analysis:
1. The judgment addresses the issue of condonation of delay in filing the first appeal under Section 107 of the U.P. Goods and Services Tax Rules, 2017. It highlights that the period of limitation for filing the appeal is three months, with a provision to condone the delay within thirty days from the expiry of the normal period of limitation. The judgment emphasizes that no application for condonation of delay can be entertained beyond the thirty-day period from the date of expiry of the normal limitation period.

2. The judgment refers to the decision of the Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur, and the Full Bench decision of the Court in Commissioner of Income Tax I; Commissioner of Income Tax Central; Janpad Thok Kendriya Upbhokta Sahkari Bhandar Limited Vs. Mohd Farooq; New Cawnpore Floor Mills Pvt Ltd; Commissioner of Income Tax. It states that the delay condonation application filed beyond the thirty-day limit cannot be condoned, as per the precedents cited, leading to the dismissal of the appeal as time-barred.

3. The judgment further delves into the question of the jurisdiction of the writ Court against the original order dated 03.12.2018. The petitioner argues that even if the remedy of appeal is considered non-existent due to the time-barred nature of the appeal, the writ Court's jurisdiction should not be ousted. The petitioner's engagement in the brick kiln business and the classification of brick quality are highlighted as points requiring consideration.

4. As a result of the arguments presented, the Court grants four weeks to the respondent to file a counter affidavit, with an additional two weeks for the petitioner to file a rejoinder affidavit. The Court also orders an immediate listing of the case. Additionally, it stays further recovery proceedings against the petitioner contingent upon the deposit of 50% of the disputed tax amount and providing security for the remaining balance within one month, with a condition that the security should not be in the form of cash or a bank guarantee.