2024 (11) TMI 442 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of Appellate Tribunal - HELD THAT - It is not at all in dispute that the order impugned in this writ petition, which has been passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act) is appealable under Section 112 of the CGST/OGST Act, 2017. It is also not in dispute that because of non-constitution of the Appellate Tribunal as required under section 109 of the said Acts, the petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of subsections-8 9 of section 112 of the said Acts. Taking into account the 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. Petition disposed off.

Summary

Issues:
1. Appealability of order under CGST/OGST Act.
2. Non-constitution of Appellate Tribunal affecting statutory remedy.
3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
4. Circular No.132/2/2020-GST regarding appeal procedure.
5. Disposal of writ petition due to non-constitution of Tribunal.

Analysis:
The judgment deals with a writ petition concerning the appealability of an order under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act). It is acknowledged that the order in question is appealable under Section 112 of the Acts. However, due to the non-constitution of the Appellate Tribunal as mandated by Section 109, the petitioner is unable to avail the statutory remedy of appeal and the associated benefits under subsections 8 and 9 of Section 112.

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, which clarified the calculation of time periods for filing appeals. Subsequently, a circular by the Central Board of Indirect Taxes and Customs provided further clarification on the appeal process in light of the non-constitution of the Tribunal. The circular emphasized that the time limit for filing an appeal would be counted from the date the President or State President of the Appellate Tribunal enters office.

Considering the orders and clarifications mentioned above, the court decided to dispose of the writ petition by granting certain reliefs to the petitioner. Firstly, the petitioner was granted the benefit of stay on the remaining tax amount in dispute, subject to depositing 20 percent of the said amount. The recovery of the balance amount was stayed due to the non-constitution of the Tribunal. Secondly, the petitioner was required to file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional. Failure to do so would allow the respondent authorities to proceed further in the matter within the legal framework.

With the above directions and liberty granted to the parties, the writ petition was disposed of, and an urgent certified copy of the order was to be issued in compliance with the rules. The judgment aimed to balance the interests of the petitioner with the statutory requirements and the constraints posed by the non-constitution of the Appellate Tribunal.