2022 (10) TMI 181 - HC - GST

Maintainability of petition - appealable order or not - Section 107 of the Central Goods and Services Tax Act, 2017 - HELD THAT - Since the respondent has already recovered more than 10% of the amount, this petition may be disposed of by permitting the petitioner to file an appeal before the Competent Appellate Authority along with and appropriate application for considering the aforesaid factual aspect and if, the Appellate Authority comes to the conclusion that requirement of sub-sections 6 and 7 of Section 107 are complied with, the Competent Authority may pass appropriate order for refund of the remaining amount which is more than 10%. The petition is disposed of by reserving liberty to the petitioner to file the appeal along with appropriate application.

Issues:
1. Appealability of the impugned order under Section 107 of the Central Goods and Services Tax Act, 2017.
2. Condonation of delay in filing the appeal.
3. Requirement of depositing 10% of the remaining tax amount for stay of balance amount.
4. Recovery of more than 10% of the tax amount by the respondent.
5. Disposal of the petition and permission to file an appeal before the Competent Appellate Authority.

Analysis:
1. The learned counsel for the petitioner acknowledged that the impugned order dated 17.06.2022 is appealable under Section 107 of the GST Act. The statutory provision allows for an appeal within 90 days from the date of the order, with the possibility of condonation of delay. It was emphasized that a deposit equal to 10% of the remaining tax amount in dispute is required for the balance amount to be stayed, as per sub-sections 6 and 7 of Section 107.

2. The petitioner's counsel highlighted that the respondent had recovered an amount exceeding 10% of the total tax due as per the impugned order. This raised concerns regarding the respondent's actions, suggesting that waiting for the statutory appeal period would have been appropriate. The petitioner sought the opportunity to file an appeal before the Competent Appellate Authority, accompanied by an application addressing this factual aspect.

3. The Government Advocate representing the respondent expressed no objection to the petitioner's proposal to file an appeal with the appropriate application. It was agreed that the Appellate Authority should review the matter in accordance with the law. Consequently, the petition was disposed of, granting the petitioner liberty to proceed with the appeal process and submit the necessary application for consideration.

4. The court ordered that the Appellate Authority must evaluate the application and render a speaking order after affording both parties an opportunity to present their case. The judgment clarified that the disposal of the petition did not imply any opinion on the merits of the case. The parties were directed to follow the legal procedures, and a certified copy of the order was to be provided in compliance with the rules.

This comprehensive analysis outlines the key legal issues addressed in the judgment, including the appealability of the order, the deposit requirement for stay, the recovery of tax amount, and the procedure for filing an appeal before the Competent Appellate Authority.

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