2024 (3) TMI 163 - HC - GST

Maintainability of petition - availability of statutory remedy of Appeal - absence of constitution of Appellate Tribunal - HELD THAT - Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non - constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed. The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the CGST/OGST Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. Petition disposed off.

Summary

Issues involved:
The judgment deals with the non-constitution of the Appellate Tribunal under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act), leading to the deprivation of the petitioner's statutory remedy of appeal and the corresponding benefits under the Acts.

Details of the Judgment:

Issue 1: Non-constitution of the Appellate Tribunal
The judgment acknowledges that the order impugned in the writ petition is appealable under Section 112 of the CGST/OGST Act, but due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, the petitioner is deprived of its statutory remedy of appeal and the corresponding benefits under subsections 8 & 9 of section 112.

Issue 2: Government Orders and Circulars
In response to the absence of the Appellate Tribunal, the Government of India issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, clarifying the time limits for filing appeals. Subsequently, the Central Board of Indirect Taxes and Customs issued Circular No.132/2/2020-GST, providing further clarification on the appeal process in light of the non-constitution of the Appellate Tribunal.

Issue 3: Disposition of the Writ Petition
Considering the government orders and circulars, the judgment deems it appropriate to dispose of the writ petition by granting the petitioner the statutory benefit of stay on the condition of depositing a sum equal to 20 percent of the remaining amount of tax in dispute. The petitioner is required to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and functional. Failure to file the appeal within the specified period upon the Tribunal's constitution allows the respondent authorities to proceed further in the matter in accordance with the law.

Conclusion:
The judgment concludes by disposing of the writ petition with the mentioned directions and observations, providing the petitioner with the necessary guidance on availing the statutory remedy of appeal once the Appellate Tribunal is constituted. An urgent certified copy of the order is to be issued as per rules.