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2024 (11) TMI 516 - HC - GSTMaintainability of petition - availability of statutory remedy of Appeal - non-constitution of the 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 aforesaid 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 subject to fulfilment of terms imposed, with the consent of the parties. Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non constitution of the Tribunal by the respondents themselves - petition disposed off.
Issues:
1. Appealability of the order under CGST/OGST Act, 2017. 2. Non-constitution of the Appellate Tribunal and its impact on the petitioner's statutory remedy. 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 and directions given by the court. Analysis: 1. The judgment addresses the appealability of an order passed under the Central Goods and Services Tax Act, 2017 (CGST Act) and the Odisha Goods and Services Tax Act, 2017 (OGST Act). It is acknowledged that the impugned order is appealable under Section 112 of the CGST/OGST Act, 2017. 2. The petitioner is deprived of the statutory remedy of appeal and the corresponding benefits of subsections 8 & 9 of section 112 due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts. The absence of the Tribunal has hindered the petitioner's ability to avail the statutory remedy of appeal. 3. 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. This order provides clarification on the calculation of time periods for filing appeals in cases where the Appellate Tribunal has not been constituted. 4. The Central Board of Indirect Taxes and Customs, GST Policy Wing, issued a circular providing further clarification on the appeal process in light of the non-constitution of the Appellate Tribunal. The circular outlines the time limits for making applications to the appellate tribunal and advises the authorities to dispose of pending appeals promptly. 5. The court, considering the orders and clarifications mentioned above, disposed of the writ petition with specific directions. The petitioner was granted the statutory benefit of stay subject to certain conditions, and it was emphasized that the relief of stay on deposit of the statutory amount cannot be open-ended. The petitioner was required to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted. Failure to do so would allow the respondent authorities to proceed further in the matter in accordance with the law. This judgment highlights the challenges faced by the petitioner due to the non-constitution of the Appellate Tribunal and provides a framework for addressing such issues while ensuring the statutory rights of the parties involved are protected.
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