2024 (4) TMI 652 - HC - GST

Maintainability of Writ Petition since GST Appellate Tribunal not constituted - Order Appealable u/s 112 of the CGST/OGST Act, 2017 - Statutory benefit of stay - Non-constitution of the Appellate Tribunal as required u/s 109 - HELD THAT - 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, we deem it proper in the interest of justice to dispose of this writ petition in the following terms, with the consent of the parties - (i) 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. (ii) The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal u/s 112 of the CGST/OGST Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal. (iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal u/s 112 of the CGST/OGST Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent-Authorities would be at liberty to proceed further in the matter, in accordance with law. With the above liberty, observation and directions, the writ petition stands disposed of.

Summary

Issues involved:
The issues involved in the judgment are the appealability of an order passed under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act) due to the non-constitution of the Appellate Tribunal as required under section 109 of the said Acts.

Comprehensive details of the judgment for each issue involved:

1. The judgment acknowledges that the order impugned in the writ petition is appealable under Section 112 of the CGST/OGST Act, 2017. However, due to the non-constitution of the Appellate Tribunal as required by law, the petitioner is deprived of its statutory remedy of appeal and the corresponding benefits under subsections 8 & 9 of section 112.

2. In response to the absence of the Appellate Tribunal, the Government of India, based on the recommendation of the GST Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. This order clarifies the calculation of time periods for filing appeals, taking into consideration the date of communication of the order and the date on which the President or State President of the Appellate Tribunal enters office.

3. The Central Board of Indirect Taxes and Customs, GST Policy Wing, further clarified the appeal process in cases where the Appellate Tribunal has not been constituted. It provided guidance on the time limits for filing appeals and suggested that appellate authorities may dispose of pending appeals expeditiously without waiting for the constitution of the Appellate Tribunal.

4. Considering the orders and clarifications mentioned above, the Court decided to dispose of the writ petition by granting the petitioner the statutory benefit of stay, subject to the verification of the deposit of a specified amount. The Court also directed the petitioner to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and functional, emphasizing the importance of following statutory requirements for the appeal process.

5. The judgment concluded by granting the petitioner the liberty to proceed with the appeal filing within a specified period upon the constitution of the Tribunal. If the petitioner chooses not to avail this remedy, the respondent authorities are permitted to take further actions in accordance with the law.

This summary provides a detailed overview of the judgment's key points and the Court's decision regarding the issues involved.