Failure to upload the order copy on GSTN portal alone cannot prevent the time-barred appeal

[CA Bimal Jain]

The Hon’ble Gujarat High Court in BRITANNIA INDUSTRIES LIMITED VERSUS UNION OF INDIA - 2023 (8) TMI 524 - GUJARAT HIGH COURT rejected the refund claim filed by the assessee on the ground that no appeal was filed against the refund rejection order.

Facts:

M/s. Britannia Industries Limited (“the Petitioner”) is a Public Limited Company engaged in the manufacture of food products such as biscuits, bread, rusk etc.

The manufacturing unit of the Petitioner is situated in Kandla Special Economic Zone and which is solely an export unit, due to which the Petitioner has accumulated Input Tax Credit (“ITC”) distributed by the Input Service Distributor.

The Petitioner filed a refund application under Section 54 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) for refund amounting to INR 37,28,087 for the period April 2019 to June 2019 on July 16, 2019.

However, the refund claim was rejected by the Revenue Department (“the Respondent”) vide and Order dated August 23, 2019 which was served manually to the Petitioner.

 The Petitioner again filed a fresh refund application on October 27, 2020 for the same period.

The Respondent issued a Show Cause Notice on November 11, 2020 (“the SCN”) asking the Petitioner to show cause as to why a fresh application was filed for refund once the claim was rejected vide by the Order dated August 23, 2019 and why no appeal was filed against the same.

The Petitioner in reply stated that they could not file an Appeal electronically as they never received electronic copy of the order which prevented them from filing an appeal in the required electronic mode.

After considering the reply filed by the Petitioner, the Adjudicating Authority vide an Order dated December 03, 2020 (“the OIO”) rejected the refund claim on the ground that refund was already rejected vide Order dated August 23, 2019 and no Appeal was filed against the same, thus the claim was not maintainable.

Aggrieved by the OIO, the Petitioner filed an appeal before the Appellate Authority who vide the Order dated June 21, 2021 (“Impugned Order”) rejected the appeal on the ground that there was no powers to review an earlier order.

Aggrieved by the Impugned Order, the Petitioner filed writ before the Hon’ble Gujarat High Court.

The Petitioner submitted that non-receipt of an electronic copy of the OIO prevented from filing an appeal in required electronic mode.

Issue:

Whether the Petitioner can file appeal manually if the order were not electronically uploaded, especially when it is undisputed fact that the assessee was communicated the orders and had received the same manually?

Held:

The Hon’ble Gujarat High Court in BRITANNIA INDUSTRIES LIMITED VERSUS UNION OF INDIA - 2023 (8) TMI 524 - GUJARAT HIGH COURT held as under:

• Observed, Section 107 of the CGST Act which states that any person aggrieved by any decision or order passed under the CGST Act may appeal to the Appellate Authority within three months from the date on which the said decision or order is communicated to the person.
• Noted that, the Appellate authority has power to condone the delay in filing appeal if the Petitioner shows sufficient cause which prevented them from filing an appeal within three months, then Appellate Authority can allow a further period of three months.
• Relied upon the Judgement of M/S. MERITAS HOTELS PVT. LTD. VERSUS THE STATE OF MAHARASHTRA, THE UNION OF INDIA, THE UNION OF INDIA, THE COMMISSIONER OF STATE TAX, THE DEPUTY COMMISSIONER OF SALES TAX, MUMBAI, THE JOINT COMMISSIONER OF SALES TAX (APPEALS -IV)  - 2021 (12) TMI 376 - BOMBAY HIGH COURT wherein Bombay High Court observed that, Rule 108 of the of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”) is no doubt prescribes that the appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after the order is uploaded on the GSTN Portal.
• Held that, merely because the order was not uploaded on the GSTN portal will not save assessee’s time to file appeals especially when the recovery proceedings have already been done and order to freeze bank accounts have been made in exercise of powers under Section 79 of the CGST Act.

(Author can be reached at [email protected])