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2024 (6) TMI 1149 - HC - GSTMainatianbility of petition - availability of statutory remedy of Appeal - appealable order u/s 112 of the CGST/OGST Act, 2017 - non-constitution of the Appellate Tribunal as required under section 109 of the said Acts - 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 where it was held that ' The appellate authority while passing order may mention in the preamble that appeal may be made to the appellate tribunal whenever it is constituted within three months from the President or the State President enters office. Accordingly, it is advised that the appellate authorities may dispose all pending appeals expeditiously without waiting for the constitution of the appellate tribunal.' Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No. 132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition subject to compliance of conditions imposed - petition disposed off.
Issues:
1. Non-constitution of the Appellate Tribunal under the CGST/OGST Act, 2017. 2. Availability of statutory remedy of Appeal under Section 112 of the Acts. 3. Impact of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. 4. Clarifications provided by the Circular No. 132/2/2020-GST. 5. Disposal of the writ petition with consent of the parties. Issue 1: The primary issue in this case revolves around the non-constitution of the Appellate Tribunal under the Central Goods and Services Tax Act, 2017 (CGST Act) and the Odisha Goods and Services Tax Act, 2017 (OGST Act). Due to the absence 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 of subsections-8 & 9 of section 112 of the said Acts. Issue 2: The petitioner seeks to avail the statutory remedy of Appeal under the provisions of the CGST/OGST Acts. The Government of India, based on the recommendation by the GST Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 to address the situation. The Order clarifies the calculation of time periods for filing appeals, taking into account the date of communication of the order and the date on which the President or State President of the Appellate Tribunal enters office. Issue 3: In line with the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, the Central Board of Indirect Taxes and Customs issued a Circular providing further clarification regarding appeals in the absence of the Appellate Tribunal. The Circular emphasizes that the time limit for making an application to the Appellate Tribunal will be counted from the date on which the President or State President enters office. Issue 4: Considering the Orders and Circulars mentioned above, the Court deems it appropriate to dispose of the writ petition with the consent of the parties. The Court directs that the petitioner must be extended the statutory benefit of stay, subject to certain conditions, and emphasizes that the petitioner should file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and functional. Failure to do so would allow the respondent-Authorities to proceed further in the matter in accordance with the law. Issue 5: The writ petition is disposed of with the mentioned directions and observations, providing the parties with certain liberties and obligations. An urgent certified copy of the order is to be issued as per rules to ensure compliance with the Court's directives and decisions.
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