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2024 (11) TMI 445 - HC - GSTMaintainability 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.
Issues:
1. Appealability of the order under the CGST/OGST Act, 2017 due to non-constitution of the Appellate Tribunal. 2. Interpretation and application of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. 3. Granting of statutory benefits to the petitioner in light of non-constitution of the Appellate Tribunal. Analysis: The High Court considered the writ petition challenging an order passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act). It was acknowledged that the order was appealable under Section 112 of the CGST/OGST Act, but due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, the petitioner was deprived of its statutory remedy of appeal. The Court noted the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, which clarified the calculation of time periods for filing appeals in such cases. In line with the Removal of Difficulties Order, the Central Board of Indirect Taxes and Customs issued a circular providing further clarification on the appeal process in the absence of the Appellate Tribunal. The circular emphasized that the time limit for filing an appeal would be counted from the date on which the President or the State President of the Appellate Tribunal enters office. It advised appellate authorities to dispose of pending appeals promptly without waiting for the constitution of the tribunal. Considering the Orders and Circular, the High Court decided to dispose of the writ petition by granting certain reliefs to the petitioner. The Court directed that the petitioner must be extended the statutory benefit of stay under Section 112 of the CGST/OGST Act, subject to the verification of the deposit of a specified sum. It was also ruled that the petitioner would need to file an appeal under Section 112 once the Tribunal is constituted and functional, observing the statutory requirements. Failure to do so would allow the respondent-Authorities to proceed further in the matter as per the law. With the above directions and observations, the High Court disposed of the writ petition, granting certain reliefs to the petitioner while ensuring that the statutory appeal process is followed once the Appellate Tribunal is constituted. An urgent certified copy of the order was directed to be issued as per rules.
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