2024 (2) TMI 1293 - HC - GST

Maintainability of petition - impugned order is an appealable order and the appeal would lie to the Appellate Tribunal under Section 86 of the Finance Act, 1994 - HELD THAT - Under Section 174(2)(f) the repeal and savings clause under the GST Act, the makers of the statute have categorically held, that the repeal of the Act shall not affect any of the proceedings including that relating to an appeal instituted before on or after the date under the said amended act or repealed act and as such the proceedings shall be continued under the said amended act or repealed acts as if this act had not come into force and the said acts have not been amended or repealed. When the statutory authority themselves has entertained an application under Section 85 of the Act for the purpose of availing an appeal before the Commissioner, the natural corollary that would follow would be the next appellate forum under the same provision of law i.e., under Section 86, to the Customs Excise and Service Tax Appellate Tribunal (CESTAT) which undisputedly is functional as on date and is also entertaining the appeals arising out of orders passed by the Commissioner under Section 85 of the Act. Since the petitioner has a forum of appeal available before the CESTAT, the present writ petition is rejected, reserving the right of the petitioner to avail the remedy of appeal. However, there shall be no order as to costs. Petition dismissed.

Summary

Issues Involved:
The issues involved in the judgment are the appealability of the impugned order and the availability of the Appellate Tribunal under Section 86 of the Finance Act, 1994 for remedy.

Appealability of the Impugned Order:
The High Court declined to entertain the writ petition as the impugned order was deemed appealable, with the appeal lying to the Appellate Tribunal under Section 86 of the Finance Act, 1994. The Court noted that the Tribunal under the GST Law was not functional, but emphasized that the repeal and savings clause under the GST Act ensured that proceedings, including appeals, could continue under the amended or repealed acts. The Court highlighted that the Customs Excise and Service Tax Appellate Tribunal (CESTAT) was functional and could entertain appeals arising from orders passed by the Commissioner under Section 85 of the Act. Consequently, the Court rejected the writ petition, allowing the petitioner to avail the remedy of appeal before CESTAT.

Availability of Appellate Tribunal under Section 86 of the Finance Act, 1994:
The High Court observed that the repeal and savings clause under the GST Act preserved the proceedings, including appeals, under the amended or repealed acts. This provision ensured that appeals could be continued under the next appellate forum, such as CESTAT, even if the Tribunal under the GST Law was not functional. The Court held that since CESTAT was operational and could entertain appeals from orders passed by the Commissioner under Section 85 of the Act, the petitioner had a forum of appeal available. Consequently, the Court rejected the writ petition, reserving the petitioner's right to avail the remedy of appeal before CESTAT, with no order as to costs.