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2024 (7) TMI 983 - HC - GSTMaintainability of petition - availability of alternative remedy - appealable order u/s 112 of the CGST/OGST Act, 2017 - HELD THAT - 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 - 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 fulfilment of conditions imposed. 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.
Issues:
1. Appealability of the order under CGST/OGST Act 2. Non-constitution of the Appellate Tribunal 3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 4. Circular No.132/2/2020-GST Dated 18th March, 2020 5. Statutory benefit of stay under Sub-Section (9) of Section 112 6. Requirement of filing an appeal once the Tribunal is constituted Analysis: 1. Appealability of the order under CGST/OGST Act: The judgment acknowledges that the order in question, passed under the CGST/OGST Act, is appealable under Section 112 of the Acts. However, due to the non-constitution of the Appellate Tribunal as required under section 109, the petitioner is deprived of its statutory remedy of appeal. 2. Non-constitution of the Appellate Tribunal: The absence of the Appellate Tribunal, a necessary body for appeals, is recognized, leading to the petitioner being unable to avail the statutory remedy of appeal. The judgment highlights the impact of this non-constitution on the petitioner's rights and the corresponding benefits under the Acts. 3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019: The Government of India, based on the recommendation of the GST Council, issued an order on 03.12.2019 to address difficulties arising from the non-constitution of the Appellate Tribunal. The order clarifies the calculation of time periods for filing appeals concerning the date of communication of the order and the entry into office of the Tribunal's President. 4. Circular No.132/2/2020-GST Dated 18th March, 2020: A subsequent circular by the Central Board of Indirect Taxes and Customs provided further clarification regarding appeals in light of the non-constitution of the Appellate Tribunal. The circular emphasized the need for expeditious disposal of pending appeals without waiting for the Tribunal's constitution. 5. Statutory benefit of stay under Sub-Section (9) of Section 112: The judgment grants the petitioner the statutory benefit of stay, subject to the verification of tax deposits. This stay is crucial to prevent the petitioner from being deprived of benefits due to the non-constitution of the Tribunal by the respondents. 6. Requirement of filing an appeal once the Tribunal is constituted: To balance equities, the Court requires the petitioner to file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional. Failure to file the appeal within the specified period upon the Tribunal's constitution allows the respondents to proceed further in the matter in accordance with the law. In conclusion, the judgment provides detailed guidance on addressing the challenges posed by the non-constitution of the Appellate Tribunal under the CGST/OGST Acts, ensuring that the petitioner's statutory rights and remedies are safeguarded while maintaining procedural fairness and adherence to legal requirements.
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