2024 (3) TMI 677 - HC - GST

Maintainability of petition - availability of alternative remedy - appealable order under Section 112 of the CGST/OGST Act, 2017 - non-constitution of the Appellate Tribunal - HELD THAT - The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal. 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 - statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. Petition disposed off.

Summary

Issues involved:
1. Constitution of Appellate Tribunal under Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act).
2. Statutory remedy of appeal and benefit under Section 112 of CGST/OGST Act due to non-constitution of the Appellate Tribunal.

The High Court addressed the issue of the non-constitution of the Appellate Tribunal under the CGST Act and OGST Act, which deprived the petitioner of its statutory remedy of appeal and corresponding benefits under Section 112 of the Acts. The Government of India, based on the recommendation of the G.S.T. Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 to clarify the calculation of time periods for filing appeals in cases where the Appellate Tribunal is not constituted. The Court considered this Order and a subsequent clarification by the Central Board of Indirect Taxes and Customs, and directed that the petitioner must be extended the statutory benefit of stay on deposit of tax amounts in dispute, subject to certain conditions. The Court also emphasized that the petitioner must file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional, failing which the authorities can proceed further in the matter. The writ petition was disposed of with these directions and observations.

Separate Judgment:
No separate judgment was delivered by the judges in this case.

This summary provides a detailed overview of the legal judgment, focusing on the issues related to the constitution of the Appellate Tribunal and the statutory remedy of appeal under the CGST and OGST Acts. The judgment highlights the importance of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, and the subsequent clarification by the Central Board of Indirect Taxes and Customs in addressing the challenges posed by the non-constitution of the Tribunal. The Court's directions regarding the petitioner's benefit of stay and the requirement to file an appeal once the Tribunal is constituted are crucial aspects of the judgment.