2024 (11) TMI 450 - 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. Constitution of Appellate Tribunal under CGST/OGST Act, 2017.
2. Statutory remedy of Appeal under Section 112 of CGST/OGST Act.
3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
4. Clarifications issued by the Central Board of Indirect Taxes and Customs, GST Policy Wing.
5. Disposal of the writ petition with respect to the above issues.

Detailed Analysis:
1. The High Court addressed the issue of the non-constitution of the Appellate Tribunal under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act). The petitioner was deprived of the statutory remedy of Appeal under Section 112 of the Acts due to the absence of the Tribunal as required by Section 109. This lack of constitution of the Tribunal hindered the petitioner's ability to exercise their statutory rights of appeal.

2. The Court acknowledged the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 issued by the Government of India, which clarified the procedure for calculating the time period for filing appeals in cases where the Appellate Tribunal had not been constituted. The Order provided specific guidelines for determining the start of the time period for filing appeals, taking into account the date of communication of the order and the date on which the President or State President of the Tribunal enters office after its constitution.

3. In line with the Removal of Difficulties Order, the Central Board of Indirect Taxes and Customs, GST Policy Wing issued Circular No.132/2/2020, dated 18th March, 2020, to provide further clarification on the appeal process in situations where the Appellate Tribunal had not been constituted. The Circular emphasized the importance of disposing of pending appeals promptly, even in the absence of the Tribunal, and outlined the procedure for making applications to the Tribunal once it is constituted.

4. Considering the Orders and Circulars mentioned above, the High Court decided to dispose of the writ petition by providing specific directions. The Court ordered that the petitioner must be granted the statutory benefit of stay on the condition of depositing a certain percentage of the tax amount in dispute. It was also ruled that the petitioner should file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional, failing which the authorities would be free to proceed in accordance with the law.

5. The judgment concluded with the disposal of the writ petition, granting certain reliefs to the petitioner while also outlining the future course of action regarding the appeal process once the Appellate Tribunal is established. The Court emphasized the need to balance the equities between the parties and ensure that the statutory rights and remedies available under the CGST/OGST Acts are upheld.