Appellate order passed after one year from filing of appeal, Goods and Services Tax - GST

[HimangshuKumar Ray]

Appeal filed in due time. Appeal hearing notice issued in online portal only in one time, no adjournment granted, appellant missed the appeal hearing notice, appellate authority passed the appellate order beyond one year from the date of filing of appeal. According to section 107(13) appeal shall hear and decide within one year from the filing of appeal. here Appellate order is barred by limitation. is there any judgement under gst law or Service tax law, or CE law, Customs law. kindly guide.

Posts / Replies

[Rajagopalan Ranganathan]

Sir,

Section 107 (13) of CGST Act, 2017 states that "the Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed.

This cannot be construed that the Appellate Authority has been directed by the Act to dispose of the appeal within one year from the date of filing of the appeal. Since the provision says "where it is possible" it cannot be construed that the Appellate Authority must dispose of the appeal within one year from the date of foling of the appeal.

[KASTURI SETHI]

Sh.Ray Ji,

Read Section 107(8) and 107(9) of CGST Act. One opportunity for P.H. is not sufficient. As per Section 107(9) of CGST Act, three adjournments for P.H. are an absolutely must. Three adjournments mean four opportunities for P.H.

Note the word, 'shall' in Section 107(8) and 107 (9) of CGST Act. The word, 'shall' means mandatory. It is mandatory for the Appellate Authority to give four opportunities and if not given, it is a clear cut case of violation of principles of natural justice.

There is a plethora of judgements on this issue. You can easily search on google. There is a judgement of High Court wherein strictures. have been passed against the Authority who has not granted three adjournments for P.H.

I shall post a few case laws in your favour at the earliest.

[Sadanand Bulbule]

Dear Sir

It is not mandatory to pass the order within one year from the date of filing of appeal under Section 107. There is a sort of discretion to the appellate authority to evaluate its own possibilities and to pass the orders at the earliest possible. The idea behind such direction is not to delay the process without valid reasons and the authorities are not supposed to take their own sweet time to dispose appeal petition. As such the orders passed beyond one year are not hit by limitation of time under Section 107[13] of the GST Act.

[KASTURI SETHI]

Yes, Sir. Time-bar factor has no legs to stand. The querist should resort to non-affording three adjournments which is mandatory for the Appellate Authority before deciding the appeal.

[Padmanathan Kollengode]

Dear querist,

Also, find out whether any hearing notice were issued during this one year period, which has been missed by the assessee to be considered.

[HimangshuKumar Ray]

Thanks you all, for quick responses. kindly post some favour case laws on 107(8) and 107(9) of CGST.

[KASTURI SETHI]

When the law is very much clear, there is no need to take shelter of any case law. However, as and when I come by any case law pertaining to post GST regime in your favour, I shall post here.

[KASTURI SETHI]

Normally the Appellate Authority does not pass Order-in-Appeal without holding personal hearing. Your case is the rarest of rare case. Original Adjudicating Authorities are committing such serious lapses. So case laws available pertaining to pre-GST era are available.

Three adjournments means four opportunities for personal hearing are to be accorded. One case law is shared :-

2017 (3) TMI 557 - GUJARAT HIGH COURT - REGENT OVERSEAS PVT. LTD. Versus UNION OF INDIA

 

[KASTURI SETHI]

Relevant extract Board's Circular No. 1053/2/2017-CX., dated 10-3-2017

14.3 Personal hearing : After having given a fair opportunity to the noticee for replying to the show cause notice, the adjudicating authority may proceed to fix a date and time for personal hearing in the case and request the assessee to appear before him for a personal hearing by himself or through an authorised representative. At least three opportunities of personal hearing should be given with sufficient interval of time so that the noticee may avail opportunity of being heard. Separate communications should be made to the noticee for each opportunity of personal hearing. In fact separate letter for each hearing/extension should be issued at sufficient interval. The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding adjourn the hearing for reasons to be recorded in writing. However, no such adjournment shall be granted more than three times to a noticee.

[KASTURI SETHI]

Also see Delhi High Court Judgement dated 22.3.23 in the case of DL Support Services India Pvt. Ltd. Vs. Addl.Commissioner CGST (Appeals-II) - 2023 (3) TMI 1264 - DELHI HIGH COURT wherein Order of the Additional Commissioner (Appeals)-II was quashed because of non-holding of personal hearing.

[KASTURI SETHI]

Personal Hearing is mandatory even if the assessee/noticee says 'NO' to P.H.-------Allahabad High Court . Mohini Traders Vs. State of U.P & Others reported as 2023 (6) TMI 531-Allahabad High Court TMI Issue ID 438957

Hearing - Adjudication proceedings - Rash manner of fixing - Sustainability - In overzeal to protect Revenue, authorities fixing hearing dates in a rash manner - No justification in fixing hearing for three consecutive dates under a single notice and then passing ex parte order without allowing petitioner to defend his case - Section 122A of Customs Act, 1962 - Article 226 of Constitution of India. [para 5] Karnataka High Court

IPC PACKAGING COMPANY PVT. LTD. Versus ADDL. C.C., ICD, BANGALORE - 2017 (10) TMI 988 - KARNATAKA HIGH COURT

[Amit Agrawal]

Notice for personal hearing - through GST portal - is valid intimation as per Section 169(1)(d) of the CGST Act, 2017.

W.r.t. time limit prescribed u/s 107 (13), it is subject to "where it is possible to do so".

In any case, I am not sure what the appellant is trying to achieve by arguing on this line against resultant order which already passed by the appellate authority (even if after one year from filing the appeal). No appellant can be interested in successfully arguing that order cannot be passed u/s 107 after one year of filing his appeal, making his appeal itself infructuous.

Section 107 (13) is meant to be used for making an application before appellate authority (for deciding the case) if appeal is not adjudicated despite one year passed from date of filing appeal.

At most & if appellant purses such matter using writ petition route etc., High court / Apex court may impose cost on Dept. / concerned appellate authority (or pass strictures) if it finds that 'delay in adjudication of appeal' is without any reasonable cause. But, such delay will not make order u/s 107 as invalid / time-barred.

Considering above, it is suggested to file an appeal once tribunal gets formed on merits of the case & limitation. And the appellant has failed to avail given opportunity of personal hearing & has also not sought adjournment, it can simply explain reasons behind it while filing the appeal before tribunal.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.