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TMI Blog2020 (10) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... ejoinder affidavit filed by the petitioner it is only submitted that the demand order as well as penalty order dated 14.08.2018 was not uploaded but no specific denial has been made to the averment made by the department that all the orders are uploaded on the web-portal of the department and similarly the demand order as well as penalty order dated 14.08.2018 passed against the petitioner was also uploaded on the web-portal - Moreover, in the rejoinder affidavit the petitioner has tried to build up a case that the order was served upon the driver of the vehicle in question which will not amount to the service upon the petitioner. This assertion cannot be accepted as from the perusal of memo of the appeal it is clear that the date of communication of order has been mentioned specifically as 14.08.2018. As in the present case the petitioner was very well aware of the fact that against the penalty order dated 14.08.2018 he had the remedy of filing the appeal but the same was not availed within the statutory limit provided under Section 107 of the Act, but he has approached the first Appellate Authority after a delay of eight months on the ground that the web-portal of the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods and vehicle in question were released. 3. It appears that after a delay of about eight months the order dated 14.08.2018 was challenged by the petitioner before first Appellate Authority on 16.07.2019, on the ground that as the copy of order and demand was not reflected on the web portal of the taxing authorities and driver of the vehicle has not informed about the order and demand made from the said order, the same could not be challenged within statutory period. On 21.11.2019 the first Appellate Authority rejected the appeal of the petitioner on ground of delay. 4. Sri Rakesh Kumar, learned counsel for the petitioner, has submitted that the first Appellate Authority should have condoned the delay in filing of appeal and heard the appeal on merits as the order dated 14.08.2018 was not available on the website and petitioner was not aware of the filing of appeal offline, as such, there has been delay in filing the appeal within the statutory time fixed under Section 107 of the Act, which is three months and further the Appellate Authority is empowered to entertain the appeal presented within further one month. It was also contended that the appeal has been rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty, which was deposited by the petitioner and the goods and vehicle were released. He further submitted that the demand order i.e. MOV-9 was uploaded on the portal as well as it was provided to the driver of the vehicle and petitioner had himself annexed the copy of the said order which he obtained online through the departmental website. 8. Sri Pandey, learned Standing Counsel, further invited the attention of the Court to annexure No. 4 which is memo of appeal filed by the petitioner before the Appellate Authority wherein at serial no. 5 the date of order is mentioned as 14.08.2018, while at serial no. 7 the date of communication of the order appealed against has been shown as 14.08.2018, thus, it is wrong to say that the order was not served upon the petitioner and the petitioner did not have the knowledge because of the fact that same was not reflected online and the petitioner could not file the appeal online. He further invited the attention of the Court to the affidavit filed alongwith delay condonation application wherein at serial no. V and IX the reasons have been assigned by the petitioner that due to non-functioning of online filing facility and the fact that pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 19. Arguendo , reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or no-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 11. Having heard learned counsel for the parties and from the perusal of the material on record, it transpires that while goods which were on their way from New Delhi to Gorakhpur being intercepted at Sikandara Toll Plaza by the mobile squad of the taxing authorities found the papers, accompanying the goods, not being in conformity, a show cause notice was given by the authorities and was served upon the driver of the vehicle in question and a reply was submitted. On the same day the penalty order was passed and was served upon the driver itself and the amount of tax demand as well as penalty was deposited by the petitioner on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... build up a case that the order was served upon the driver of the vehicle in question which will not amount to the service upon the petitioner. This assertion cannot be accepted as from the perusal of memo of the appeal it is clear that the date of communication of order has been mentioned specifically as 14.08.2018. Further on the said date the entire amount was deposited by the petitioner, pursuant to which the goods and vehicle in question were released, thus, the argument as well as assertion made in the rejoinder affidavit cannot be accepted to the extent that no service was made upon the petitioner as the order was served upon the driver of the vehicle. 16. Reliance placed upon the decision of coordinate Bench of this Court in the case of M/s. Jindal Pipes Limited (Supra) is distinguishable in the facts of the present case and the benefit of the same cannot be extended to the petitioner, moreso, no such ground was ever taken by the petitioner before the first Appellate Authority while filing the appeal nor in the affidavit filed to the delay condonation application. The reliance placed upon the decision of Division Bench judgment of this Court in the case of M/S Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices Tax Act for the purpose of satisfying himself as to the legality or propriety of the said order and may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within six months from the date on which the said order has been passed for determination of such points arising out of the said order as may be specified by the Commissioner in his order; AND WHEREAS, section 109 of the said Act provides for the constitution of the Goods and Services Tax Appellate Tribunal and Benches thereof; AND WHEREAS, for the purpose of filing the appeal or application as referred to in sub-section (1) or sub-section (3) of section 112 of the said Act, as the case may be, the Appellate Tribunal and its Benches are yet to be constituted in many States and Union territories under section 109 of the said Act as a result whereof, the said appeal or application could not be filed within the time limit specified in the said sub-sections, and because of that, certain difficulties have arisen in giving effect to the provisions of the said section; NOW, THEREFORE, in exercise of the powers conferred by section 172 of the Central Goods and Services Tax Act, 2017, the ..... 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