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2024 (11) TMI 439 - 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 under CGST/OGST Act, 2017 due to non-constitution of Appellate Tribunal. 2. Interpretation and application of Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. 3. Statutory remedy of appeal and benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act. 4. Requirement to file an appeal once the Tribunal is constituted. 5. Liberty for respondent-Authorities to proceed if appeal is not filed within specified period. Analysis: The High Court addressed the issue of appealability of an order under the CGST/OGST Act, 2017 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 due to the absence of the Tribunal as required under section 109 of the Acts. The Court noted that 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 to address this issue. Regarding the interpretation and application of the Removal of Difficulties Order, the Court referred to a Circular issued by the Central Board of Indirect Taxes and Customs, which clarified the time limit for filing appeals in the absence of the Appellate Tribunal. The Circular emphasized that the time limit for making an application to the Tribunal would be counted from the date on which the President or the State President enters office, providing guidance for the disposal of pending appeals without waiting for the constitution of the Tribunal. The Court then delved into the statutory remedy of appeal and the benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act. It directed that the petitioner must be extended the benefit of stay, subject to certain conditions, to ensure that the petitioner is not deprived of the benefit due to the non-constitution of the Tribunal by the respondents. The Court emphasized the importance of balancing equities in granting relief. Furthermore, the Court outlined the requirement for the petitioner to file an appeal under Section 112 of the Acts once the Tribunal is constituted and made functional. The appeal would need to be filed observing the statutory requirements after the Tribunal comes into existence to facilitate the consideration of the appeal. Lastly, the Court granted liberty to the respondent-Authorities to proceed further in the matter if the petitioner chooses not to avail the remedy of appeal by filing an appeal within the specified period upon the constitution of the Tribunal. With these directions and observations, the writ petition was disposed of, and an urgent certified copy of the order was to be issued as per rules.
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