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2024 (11) TMI 448 - 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 passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act) 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 and Circular No.132/2/2020-GST. 3. Granting of statutory benefits to the petitioner in light of the non-constitution of the Appellate Tribunal. Analysis: 1. The High Court addressed the issue of appealability of an order passed under the CGST Act/OGST Act due to the non-constitution of the Appellate Tribunal. It was acknowledged that the petitioner was deprived of the statutory remedy of appeal and the corresponding benefits of subsections 8 and 9 of section 112 of the Acts because of the absence of the Tribunal as required under section 109. The Court noted the issuance of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 by the Government of India to address this issue. 2. The Court considered the interpretation and application of the Removal of Difficulties Order and Circular No.132/2/2020-GST issued by the Central Board of Indirect Taxes and Customs. These documents clarified that the appeal to the Tribunal could be made within a specified period from the date of communication of the order or from the date on which the President or State President of the Appellate Tribunal enters office, whichever is later. The Court emphasized the importance of timely filing of appeals once the Tribunal is constituted for proper consideration. 3. In light of the above, the High Court granted statutory benefits to the petitioner due to the non-constitution of the Appellate Tribunal. The Court directed that the petitioner must be extended the benefit of stay on deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, subject to certain conditions. The Court also outlined that the petitioner would be required to file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional. Failure to file an appeal within the specified period upon the Tribunal's constitution would allow the respondent authorities to proceed further in the matter in accordance with the law. The Court disposed of the writ petition with these directions and observations.
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