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2024 (3) TMI 326 - HC - GSTMaintainability of petition - availability of alternative remedy of appeal - non-constitution of the Appellate Tribunal - HELD THAT - The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal. Taking into account the aforesaid 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 subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Issues involved:
The issues involved in this case include the appealability of 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) under Section 112, deprivation of statutory remedy of Appeal due to non-constitution of the Appellate Tribunal, and the applicability of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 in such cases. Appealability of Order: The order impugned in the writ petition, passed by the Authority under the CGST/OGST Act, is acknowledged as appealable under Section 112 of the Acts. However, due to the non-constitution of the Appellate Tribunal as required under section 109, the petitioner is deprived of its statutory remedy of Appeal and the corresponding benefits under subsections 8 & 9 of section 112. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019: 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. This order clarifies the calculation of time periods for filing appeals, considering the date of communication of the order and the date on which the President or State President of the Appellate Tribunal enters office. Clarification and Circular: A clarification was issued by the Central Board of Indirect Taxes and Customs, GST Policy Wing through Circular No. 132/2/2020-GST. This circular addresses the appeal process in cases where the Appellate Tribunal has not been constituted, providing guidance on the time limit for making applications to the tribunal and advising the disposal of pending appeals without waiting for the tribunal's constitution. Judgment and Disposal: Considering the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 and the circular issued by the GST Policy Wing, the Court decided to dispose of the writ petition by granting the petitioner the benefit of stay on the remaining tax amount in dispute. The petitioner is required to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and functional, failing which the respondent-Authorities can proceed further in accordance with the law. Certified Copy: An urgent certified copy of the order was directed to be issued in accordance with the rules.
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