2024 (11) TMI 443 - HC - GST

Maintainability 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.

Summary

Issues:
1. Appealability of the order under CGST/OGST Act, 2017.
2. Non-constitution of the Appellate Tribunal and its impact on statutory remedies.
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, GST Policy Wing.
5. Disposal of the writ petition in light of the legal provisions and orders.

Analysis:
1. The judgment addresses the issue of appealability under the CGST/OGST Act, 2017, emphasizing that the order in question is appealable under Section 112 of the Acts.
2. It highlights the impact of the non-constitution of the Appellate Tribunal, depriving the petitioner of the statutory remedy of Appeal and the corresponding benefits under subsections 8 and 9 of Section 112.
3. The judgment refers to the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, issued by the Government of India to address the absence of the Appellate Tribunal, providing clarity on the calculation of time periods for filing appeals.
4. It further discusses the clarifications issued by the Central Board of Indirect Taxes and Customs, GST Policy Wing, regarding the filing of appeals in the absence of the Appellate Tribunal, emphasizing the importance of timely disposal of pending appeals.
5. Finally, the judgment disposes of the writ petition by granting the petitioner the statutory benefit of stay, subject to certain conditions, and requiring the petitioner to file an appeal under Section 112 once the Tribunal is constituted. It also provides liberty to the respondent-Authorities to proceed further if the petitioner chooses not to avail the remedy of appeal within the specified period upon the Tribunal's constitution.