9911796707
TMI Blog2023 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... (O-I-O) raising a demand of Rs. 1,01,02,741/- for contravention of provisions of Section 16(2) of the CGST Act and further levy of interest under section 50 of the Act and imposition of penalty under Section 122(1) read with section 74 of the CGST Act, 2017 and section 125 of the CGST Act, 2017. 3. Narrative of the relevant events :- (i) The Petitioner is engaged in the business of exporting mobile handsets. The Petitioner is registered under the CGST Act, 2017 as a sole proprietor. (ii) On 10th April 2020 and 24th February 2020, the Petitioner made an application for refund of Input Tax Credit (for short "ITC") on export of goods and services for the period February 2020 and January 2020 claiming refund of Rs. 1,01,72,874/- and Rs. 16,51,370/- respectively. (iii) On 7th August 2020, summons under section 70 of the CGST Act was served on the Petitioner to conduct inquiry about contravention of provisions of the CGST Act and the Rules. Pursuant to the said summons, the Petitioner attended and a statement of the Petitioner was recorded. (iv) On 25th March 2021, common notice was issued under section 74 of the CGST Act, section 74 of the Maharashtra GST Act, 2017 and section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. The Appellate Authority stated that the pre-deposit for filing the appeal has not been made by the Petitioner and furthermore, the appeal is not signed as per Rule 26 and, therefore, the Appeals are liable to be rejected. The Commissioner (Appeal) observed that as per the investigation report, the persons from whom IJM Exporters had purchased the goods were non-existent and, therefore, the IJM Exporters had claimed fake ITC and since purchases of the Petitioner are from IJM Exporters, consequently the Petitioner has also wrongly availed the ITC and made a claim for refund. 4. Being aggrieved by the aforesaid order, the Petitioner has filed the present petition since so far the GST Tribunal has not been constituted and the cancellation of the registration is affecting the business of the Petitioner. It is on this backdrop that this Court has entertained the present petition. 5. Heard learned counsel for the Petitioner and learned counsel for the Respondents. 6. SUBMISSIONS OF THE PETITIONER :- The Petitioner has contended that the O-I-O has been passed pursuant to a show cause notice under section 74 of the CGST Act. The Petitioner submits that she had made an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation with regard to filing of GSTR-1 and GSTR-3. The Respondents further contended that the plea taken by the Petitioner that proper procedure for cancellation of registration and processing of refund application having not been followed, was not taken before the lower authorities. The Petitioner was put to the notice to show cause why the registration should not be cancelled and also for processing the refund application as evident from the show cause notice dated 25th March 2021. The Petitioner replied to the same without objecting to the procedure and, therefore, the contention raised by the Petitioner on this count is to be rejected since the Petitioner had participated in the proceedings without objecting to the same. 8. ANALYSIS:- As per section 107(6) of the CGST Act, 2017, no appeal shall be filed unless the Appellant has paid admitted tax, interest, fine, fee and penalty in full and a sum equal to 10% of the amount of tax in dispute in relation to which the appeal has been filed. Rule 108(2) of the CGST Rules provides that the grounds of appeal and the form of verification as contained in GST APL 01 form shall be signed in the manner specified in Rule 26. Rule 26 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al found that the appeals were incompetent, it should have refrained from dealing with the merits and expressing any opinion on any of the questions raised by the respondents in support of their appeals. From this, it follows that the Tribunal committed an error of law in dealing with the merits....." 11. The reasons given in paragraphs 5.4 to 5.6 of the order in appeal that is to say proof of pre-deposit having not been filed, certified copy of the order having not been filed and appeal having not been authenticated as per rule 26(a) is a procedural requirement for filing the appeal. In our view, justice cannot be denied for failure to comply with the procedure without giving an opportunity to the Appellant to rectify the procedural defects. In our view, the Commissioner (Appeal) ought to have issued a defect memo calling upon the Petitioner to produce the proof of pre-deposit of tax as per section 107(6) of the CGST Act, 2017, for filing the certified copy of the order and for authentication of the appeal memo as per rule 26(2)(a). The Commissioner (Appeal) having not given an opportunity to the Petitioner for curing the procedural defect was not justified in rejecting the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy has been made by the appellant after the decree was drawn up, the office of the appellate court should return the appeal to the appellant as defective, and when the decree is filed by him the question of limitation may be examined on the merits." 13. Similarly, in the case of Bharat Industries Vs. State of Maharashtra (1995) 98 STC 417, a Coordinate Bench of this Court has held that an appeal cannot be dismissed in limine or similarly for failure to set out the grounds relied on for the purpose of appeal in the memorandum of appeal without giving an opportunity to the Appellant to amend the memorandum of appeal by furnishing the same or for any other defect or omission without giving a reasonable opportunity for rectification of the defects or fill up the omission. 14. The Supreme Court in the case of United Bank of India Vs. Naresh Kumar & Ors (1996) 6 SCC 660., has observed that substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no injustice is done to any party. Similar views are expressed in the cases of Commissioner of Income-Tax Vs. Hope Textiles Ltd. [2006] 287 ITR 321 (MP)., Uday Shankar Triyar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
