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2020 (6) TMI 246 - HC - GSTMaintainability of appeal - appealable Order - time limitation for filing appeal - petition has been filed bye-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date - HELD THAT - It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be considered to be the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. The instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
Issues:
Challenge to order under Section 129 (3) of the C.G.S.T. Act, 2017 and Section 20 of the IGST Act, 2017; Refund of bank guarantee and amount deposited; Appeal under Section 112 of the C.G.S.T. Act, 2017; Non-constitution of Appellate Tribunal; Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019. Analysis: The petitioner filed a petition under Article 226 challenging orders passed by respondents under Section 129 (3) of the C.G.S.T. Act, 2017 and Section 20 of the IGST Act, 2017, seeking a refund of the bank guarantee and deposited amount. The petition bypassed the appeal remedy under Section 112 due to the non-constitution of the Appellate Tribunal. The government issued the Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019, allowing the appeal period to commence upon the constitution of the Tribunal. It was argued that the petitioner could wait for the Tribunal's constitution as no prejudice was caused since the seized goods were already released. The petitioner's counsel acknowledged this legal position and the release of goods. The impugned orders were found to be appealable under Section 112 of the C.G.S.T. Act, 2017, with a 90-day appeal filing window from the date of order communication. The petition was disposed of, allowing the petitioner to avail the remedy of filing an appeal before the Tribunal in accordance with the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. The Court considered the practical difficulties faced by assessees due to the non-constitution of the Tribunal and provided a solution to ensure the petitioner's right to appeal is preserved without prejudice.
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