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2024 (11) TMI 441 - 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. Constitution of the Appellate Tribunal under the CGST/OGST Act, 2017. 2. Availability of statutory remedy of Appeal for the petitioner. 3. Interpretation and application of Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. 4. Clarifications provided by the Central Board of Indirect Taxes and Customs, GST Policy Wing. 5. Disposal of the writ petition in light of the above circumstances. Detailed Analysis: 1. The judgment addresses the issue of the non-constitution of the Appellate Tribunal under the CGST/OGST Act, 2017. It is acknowledged that due to the absence of the Appellate Tribunal as required under section 109 of the Acts, the petitioner is deprived of the statutory remedy of Appeal under Section 112 and the corresponding benefits. The Government of India, based on the recommendation of the G.S.T. Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, to address this issue. 2. The petitioner sought to avail the statutory remedy of Appeal under the provisions of the Acts. The judgment highlights the importance of the Appellate Tribunal's constitution for the proper functioning of the appeal process. The petitioner's right to appeal and the benefit of stay under Section 112 of the Acts should not be denied due to the non-constitution of the Tribunal by the respondents. 3. The interpretation and application of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 are crucial in this judgment. The Order provides clarity on the calculation of time periods for filing appeals in cases where the Appellate Tribunal has not been constituted. This Order, along with subsequent clarifications by the Central Board of Indirect Taxes and Customs, plays a significant role in guiding the decision-making process in this case. 4. The judgment extensively discusses the clarifications provided by the Central Board of Indirect Taxes and Customs, GST Policy Wing, through Circular No.132/2/2020. These clarifications offer guidance on the time limits for making applications to the Appellate Tribunal in situations where the Tribunal has not been constituted. The circular emphasizes expeditious disposal of pending appeals without waiting for the constitution of the Appellate Tribunal. 5. Finally, the judgment concludes by disposing of the writ petition in light of the circumstances discussed above. It outlines specific directions for the petitioner to avail the remedy of appeal once the Tribunal is constituted and functional. The judgment balances the equities by ensuring that the petitioner's right to appeal is preserved while allowing the respondent-Authorities to proceed further in the absence of an appeal within the specified period after the Tribunal's constitution.
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