2019 (8) TMI 901 - AAAR - GST

Condonation of delay u/s 100 of CGST Act - appeal against ruling of AAR - classification of goods - Evacuated/Vacuum Tube Collectors (ETC/VTC) - classified under Chapter 84 of HSN - benefit of concessional rate as per Sl. No. 234 of Schedule - I under Notification, 01/2017 IGST Rate dated 28.06.2017 - HELD THAT - On a plain reading of the provisions of Section 100 of the said Act, it is apparent that the same mandates that an appeal should be filed within 30 days from the date of communication of the advance ruling order that is sought to be challenged. However, in view of the proviso thereto, the Appellate Authority is empowered to allow the appeal to be presented within a further period of 30 days if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. Thus, the Appellate Authority is empowered to extend the period for filing an appeal for a further period of 30 days only and not more than such period. Whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the period of 60 days does not require much debate and has been answered in the negative by the Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period of 60 days prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay. It is evident that this Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of Section 100 of the CGST Act is concerned, the crucial words are not exceeding thirty days used in the proviso to sub-section (2). To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase not exceeding thirty days wholly otiose. No principle of interpretation would justify such a result - we are not empowered to condone the delay of 145 days in filing this appeal. Since the appeal cannot be allowed to be presented on account of time limitation, the question of discussing the merits of the main issue in appeal which is the eligibility to concessional rate of GST on the product Evacuated Tube Collector, does not arise. Appeal dismissed on the grounds of time bar.

Summary

Issues Involved:
1. Classification of Evacuated/Vacuum Tube Collectors (ETC/VTC).
2. Eligibility for the concessional rate of tax under Sl. No. 234 of Notification No. 01/2017 IGST (Rate).
3. Condonation of delay in filing the appeal.

Detailed Analysis:

1. Classification of Evacuated/Vacuum Tube Collectors (ETC/VTC):
The appellant, M/s Nuetech Solar Systems Pvt Ltd., sought clarification on whether ETC/VTC falls under Chapter 84 of HSN, covered in Sl. No. 234 of Schedule-I under Notification No. 01/2017 IGST Rate dated 28.06.2017. The Authority for Advance Ruling (AAR) opined that ETC merits classification under Chapter Heading 8419 as part of solar water heater systems.

2. Eligibility for Concessional Rate of Tax:
The AAR held that to be eligible for the concessional rate of 5%, the product must be a solar power-based device or part thereof. The AAR interpreted "solar power-based devices" as those operated by electricity generated from solar energy, referencing the Electricity Act, 2003. Since ETC converts solar energy directly to heat energy without generating electricity, it was ruled that ETC does not qualify as a solar power-based device eligible for the concessional rate under Sl. No. 234 of Notification No. 01/2017 IGST (Rate).

3. Condonation of Delay in Filing the Appeal:
The appellant received the AAR ruling on 04.01.2019 and filed the appeal on 29.05.2019, resulting in a delay of 145 days. The appellant sought condonation of the delay, citing consultations with various authorities and trade associations. The Appellate Authority reviewed Section 100 of the CGST Act, which allows an appeal to be filed within 30 days of the ruling, extendable by another 30 days if sufficient cause is shown. However, the Supreme Court's interpretation in Singh Enterprises vs CCE and other cases clarified that statutory bodies cannot condone delays beyond the prescribed period. Consequently, the Appellate Authority held that it lacked the jurisdiction to condone the delay of 145 days, rejecting the application for condonation.

Conclusion:
Due to the time-barred nature of the appeal, the Appellate Authority dismissed the appeal without addressing the merits of the main issue regarding the eligibility for the concessional rate of GST on ETC. The final order stated: "We dismiss the appeal filed by the appellant M/s. Nuetech Solar Systems Pvt Ltd, on the grounds of time bar."