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2024 (11) TMI 440 - 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 passed by the Authority under the CGST/OGST Act. 2. Deprivation of statutory remedy of appeal due to non-constitution of the Appellate Tribunal. 3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 and its implications. 4. Clarifications provided by the Central Board of Indirect Taxes and Customs regarding appeal process. 5. Disposal of the writ petition in light of the Removal of Difficulties Order and clarifications. Analysis: 1. The judgment addresses 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). It is acknowledged that the order in question is appealable under Section 112 of the CGST/OGST Act, but the issue arises due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, leading to the petitioner being deprived of its statutory remedy of appeal and the corresponding benefits under subsections 8 and 9 of section 112. 2. The petitioner seeks to avail the statutory remedy of appeal, and the judgment highlights the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 issued by the Government of India based on the recommendation of the GST Council. This order provides clarity on the calculation of time periods for filing appeals in cases where the Appellate Tribunal has not been constituted. The judgment emphasizes the need for the constitution of the Tribunal to facilitate the appeal process. 3. The judgment discusses the implications of the Removal of Difficulties Order, 2019, and the subsequent clarification provided by the Central Board of Indirect Taxes and Customs through Circular No.132/2/2020-GST. These clarifications address the challenges arising from the non-constitution of the Appellate Tribunal and provide guidance on the timelines for filing appeals once the Tribunal is constituted. 4. In light of the Removal of Difficulties Order and the clarifications provided, the judgment decides to dispose of the writ petition by granting certain reliefs to the petitioner. The Court orders that the petitioner must be extended the statutory benefit of stay under Sub-Section 9 of Section 112 of the CGST/OGST Act, subject to certain conditions. Additionally, the petitioner is required to file an appeal under Section 112 once the Tribunal is constituted, failing which the respondent authorities are permitted to proceed further in the matter. 5. The judgment concludes by issuing necessary directions and granting liberty to the respondent authorities to take appropriate steps if the petitioner does not avail the remedy of appeal within the specified period after the constitution of the Tribunal. The writ petition is disposed of with the mentioned observations and directions, emphasizing the importance of adherence to statutory requirements for facilitating the appeal process.
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