GST Appeal, Goods and Services Tax - GST

[HITESH SHAH]

One of My client has received the order. Date of Order in Original :- 31/03/2023 Date of Order received by post:- 23/06/2023 Date of Order Uploaded on GST Portal:- 29/12/2023. Date of filling Appeal 24/01/2024. In this scenario, is the appeal time-barred or not? Kindly provide the relevant notification or any case studies." Appeal Rejected by the officer on ground that appeal is time barred.

Posts / Replies

[KASTURI SETHI]

The Order-in-Appeal is legally correct. The tax payer received the Order-in-Original on 23.6.23 and the appeal should have been filed before the expiry of 90 days. You cannot take the shelter of the date of uploading on Common Portal System. The mode of service of the Order by registered post or speed post is legally valid as per Section 169 (1) (b) of CGST Act.

2025 (1) TMI 517 - MADRAS HIGH COURT-UDUMALPET SARVODAYA SANGHAM. VERSUS THE AUTHORITY, UNDER SHOP AND ESTABLISHMENT ACT/ DEPUTY COMMISSIONER OF LABOUR, COIMBATORE.

[KASTURI SETHI]

Here is a case law in your favour :-

2020 (11) TMI 749 - MADHYA PRADESH HIGH COURT

M/S. SHRI SHYAM BABA EDIBLE OILS VERSUS THE CHIEF COMMISSIONER AND ANOTHER

Violation of principles of Natural Justice - Grievance of the petitioner is that while raising the demand of tax vide summary of order dated 18.09.2020 vide Annexure P/2, the foundational show-cause notice/order No.12 dated 10.06.2020 qua financial year 2018-2019 and tax period April, 2018 to March, 2019, was never communicated to the petitioner who is an individual registered under GST Act - Rule 142 of Central Goods and Services Tax Act, 2017 - HELD THAT:- A bare perusal of the aforesaid provision reveals that the only mode prescribed for communicating the show-cause notice/order is by way of uploading the same on website of the revenue.

The State in its reply has provided no material to show that show-cause notice/order No.12 dated 10.06.2020 was uploaded on website of revenue. In fact, learned AAG, Shri Mody, fairly concedes that the show-cause notice/order was communicated to petitioner by Email and was not uploaded on website of the revenue - It is trite principle of law that when a particular procedure is prescribed to perform a particular act then all other procedures/modes except the one prescribed are excluded. This principle becomes all the more stringent when statutarily prescribed as is the case herein.

This Court has no manner of doubt that statutory procedure prescribed for communicating show-cause notice/order under Rule 142(1) of CGST Act having not been followed by the revenue, the impugned demand dated 18.09.2020 vide Annexure P/2 pertaining to financial year 2018-2019 and tax period April, 2018 to March, 2019 deserves to be and is struck down - Petition allowed.

No.- W.P. No.16131/2020

Dated.- November 19, 2020

[KASTURI SETHI]

Also read para nos.6,7 & 8 of the following case law :-

2021 (12) TMI 1039 - KERALA HIGH COURT

Other Citation: [2022] 96 G S.T.R. 3 (Ker)

NELLISSERY & CO., VERSUS STATE TAX OFFICER, PALAKKAD, STATE OF KERALA, GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI

Service of order - Original copy of order was not received or lost - Direction to serve a copy of an Order issued under Section 129(3) of the Central Goods and Services Tax Act - Non-invocation of bank guarantee furnished by the petitioner - whether petitioner was in receipt of the order issued by the first respondent under Section 129(3) of the Act? - HELD THAT:- As per the statutory prescription and going by the averments in the counter affidavit as well as the documents produced, it is evident that petitioner can be deemed to have been tendered with the order under Section 129(3) on 03.02.2020. The fiction that is created does not leave any room for doubt and since the tendering of notice is by registered post with acknowledgement due, there is no scope for even assuming that the order was not served on the petitioner. In this context, this Court notices the pleading of the petitioner that he had received the notice for hearing scheduled on 24.01.2020. The copy of dispatch register showing that the order was dispatched on 28.01.2020 and the copy of acknowledgement card produced as Ext.R1(c), fortifies the above conclusion - the order under Section 129(3) of the Act was served on the petitioner on 03.02.2020.

Having regard to the contention that petitioner had not received the order or that he may have misplaced the order due to which petitioner ought to be given a certified copy to enable him to pursue appropriate statutory remedy is a contention which merits consideration - Since the petitioner’s right to pursue an appeal cannot be curtailed solely on account of non-receipt of an order or loss of an order, if law otherwise permits him to pursue the appeal, then certainly it is incumbent upon the first respondent to issue a certified copy to the petitioner.

The first respondent is directed to issue a certified copy of the order to the petitioner in accordance with law forthwith - petition disposed off.

No.- W.P.(C) No.21209 of 2021

Dated.- November 3, 2021