2024 (6) TMI 1150 - HC - GST

Mainatianbility 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.

Summary

Issues:
1. Applicability of statutory remedy of Appeal under CGST/OGST Act due to non-constitution of Appellate Tribunal.
2. Interpretation of Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 and Circular No. 132/2/2020-GST.
3. Granting of statutory benefit of stay to the petitioner.
4. Requirement for the petitioner to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted.
5. Consequences if the petitioner does not avail the remedy of appeal.

Analysis:
1. The judgment addresses the issue of the statutory remedy of Appeal under the CGST/OGST Act being affected by the non-constitution of the Appellate Tribunal. The petitioner was deprived of the right to appeal due to the absence of the Tribunal, which is a prerequisite for appeals under Section 112 of the Acts. The Central Government issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 to clarify the timeline for filing appeals in such cases.

2. The Court considered the interpretation of the Removal of Difficulties Order and Circular No. 132/2/2020-GST, which provided guidelines for appeals in the absence of the Appellate Tribunal. The Order clarified that the appeal period would start from the date of communication of the order or the date the President or State President of the Tribunal enters office, whichever is later. The Circular emphasized the need for expeditious disposal of pending appeals without waiting for the Tribunal's constitution.

3. The judgment granted the petitioner the statutory benefit of stay on the condition of depositing a sum equal to 20 percent of the remaining tax amount in dispute. This stay was deemed necessary to prevent the petitioner from being disadvantaged due to the non-constitution of the Tribunal. The order ensured that recovery actions were stayed until further notice.

4. It was decided that once the Tribunal is constituted and functional, the petitioner must file an appeal under Section 112 of the Acts. The petitioner was required to observe the statutory requirements for filing the appeal after the Tribunal's establishment to facilitate its consideration. Failure to file the appeal within the specified period upon the Tribunal's constitution would allow the authorities to proceed with the matter in accordance with the law.

5. The judgment concluded by disposing of the writ petition with the mentioned directions, observations, and liberty for the authorities to proceed if the petitioner chooses not to file an appeal within the specified period after the Tribunal's constitution. An urgent certified copy of the order was to be issued as per rules for compliance.