2023 (2) TMI 932 - HC - GST

Maintainability of appeal - Appeal can be entertained as per the provisions of Rule 108 of the Tamil Nadu Goods and Service Tax Rules, 2017 even if the assessee has not submitted a certified copy of the order within a period of seven days as stipulated under Rule 108(3) of the Rules, or not. HELD THAT - The issue for consideration in this writ petition was also the subject matter of consideration by the Division Bench of Orissa High Court in the case of M/s.Atlas PVC Pipes Limited vs. State of Odisha and others 2022 (7) TMI 130 - ORISSA HIGH COURT . In the aforesaid decision of the Orissa High Court also, the petitioner assessee had filed an Appeal under Section 107 of the Odisha Goods and Services Tax Act, 2017, electronically on time, but did not furnish a certified copy of the impugned order, within seven days of filing of the appeal as prescribed under the proviso to Rule 108(3) of the OGST Rules. After giving due consideration to all the relevant provisions of the OGSTAct/Rules, the Orissa High Court has held that since Rule 108(3) has not prescribed for condonation of delay in the event where the petitioner fails to submit the 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 the period stipulated in sub-rule (3) of Rule 108 , the requirement to furnish certified copy of the impugned order within seven days of filing of appeal is only a procedural requirement, which can be condoned by exercising powers under Article 226 of the Constitution of India as it is only a technical defect. This Court is of the considered view that the direction sought for by the petitioner in these writ petitions has to be granted, i.e., to direct the respondents to accept the certified copy of the impugned order submitted by the petitioner and thereafter process the Appeal filed under Section 107 of the Tamil Nadu Goods and Service Tax Act if it is otherwise in order and entertain the said Appeal thereafter and decide the same, on merits and in accordance with law - petition disposed off.

Summary

Issues:
- Interpretation of Rule 108 of the Tamil Nadu Goods and Service Tax Rules, 2017 regarding the submission of a certified copy of the impugned order within a specified time frame for filing an Appeal under Section 107 of the Tamil Nadu Goods and Service Tax Act, 2017.

Analysis:
The writ petitions were filed seeking a direction for the first respondent to accept an Appeal filed electronically against an order passed in GSTIN. The main issue was whether an Appeal could be entertained if the assessee failed to submit a certified copy of the impugned order within seven days as required by Rule 108(3) of the Tamil Nadu Goods and Service Tax Rules, 2017. The petitioner had filed the Appeal electronically on time but did not submit the hard copy of the order within the stipulated period. The respondents refused to entertain the Appeal based on this non-compliance.

A counter affidavit by the respondents reiterated the proviso to Rule 108(3) emphasizing the importance of submitting the certified copy within the specified time frame. The Division Bench of the Orissa High Court had previously considered a similar issue and held that the requirement to furnish a certified copy within seven days was a procedural requirement that should not sacrifice the merit of the Appeal. The Orissa High Court allowed condonation of the delay in submitting the certified copy considering it a technical defect.

The Madras High Court agreed with the Orissa High Court's view, stating that the merit of the Appeal should not be sacrificed due to non-compliance with a procedural requirement. The Court directed the petitioner to submit the certified copy of the impugned order within a week and ordered the first respondent to process the Appeal and decide on its merits within three months. The Court emphasized that the technical defect of not submitting the certified copy within seven days should not hinder the processing of the Appeal under Section 107 of the Tamil Nadu Goods and Service Tax Act, 2017.

In conclusion, the Court granted the direction sought by the petitioner, emphasizing the importance of processing the Appeal on its merits despite the technical defect of delayed submission of the certified copy. The writ petitions were disposed of with the directive for the petitioner to submit the required documents promptly for further processing of the Appeal.