9911796707
TMI Blog2023 (8) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to the person. The Appellate authority has power if sufficient cause is shown that the appellant was prevented from filing an appeal within three months then it can allow a further period of three months - Rule 108 provides that the appeal has to be filed in the form either electronically or otherwise as may be notified. That no other mode is notified and the only mode is an electronic mode is accepted. (the old rule, before amendment shall apply in present case). Section 169 talks about service of notice in certain circumstances. Reading the Section indicates that any decision or order shall be served by giving or tendering it directly or by a messenger including a courier to the addressee of the taxable person. Section 37C also provides that any decision shall be served by tendering the same to the person to whom it is intended to be so served. Heavy reliance is placed by the learned counsel for the petitioners on the judgement of this Court in the case of Gujarat Petronet [ 2020 (9) TMI 427 - GUJARAT HIGH COURT] . Reading the judgement in its entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manually served with the orders dated 31.3.2021 and 29.4.2021 and therefore merely because the orders were subsequently uploaded will not render or save their appeals from the same having been time barred especially when recovery proceedings have already been done and orders to debit freeze accounts have been made in exercise of powers under Section 79 of the CGST Act and not as submitted by the learned advocate for the petitioner, under Section 83 of the Act. Section 79(1)(c) of the CGST Act empowers the department to directly debit the amount lying in the bank accounts. As far the case of the partners in these petitions to contend that they are now not liable, Section 90 of the CGST Act provides that the firm and each of the partners of the firm shall be jointly and severally liable for any dues. The section has been a part of the reproduction of the reply in this part of the judgement and hence is not so reproduced. Petition dismissed. - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MR. JUSTICE DEVAN M. DESAI Appearance: For The Petitioner(S) No. 1 : Mr Anandodaya S Mishra(8038) Mr Rohit G Lalwani(12507) For The Respondent(S) No. 3: Mr Priyank Lod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 An application under Section 54 of the CGST Act was filed for refund amounting to Rs. 37,28,087/- for the period from April 2019 to June 2019. The application was filed on 16.7.2019. The claim for refund was rejected on 23.08.2019 and the Order-In-Original (O-I-O) was manually served. A fresh application was filed on 27.10.2020. 3.2 The authorities issued a Show Cause Notice on 11.11.2020 asking the petitioner to show cause as to why a fresh application was filed for refund once the claim was rejected vide an order dated 23.08.2019 and no appeal was filed against the same. A reply was filed on 1.12.2020 and by an Order in Original dated 3.12.2020 the claim was once again rejected on the ground that once the Order dated 23.08.2019 rejecting the same claim was passed and no Appeal was filed, the same having attained finality, the claim was not maintainable. 3.3 An appeal filed against the order dated 3.12.2020 was rejected by the Appellate Authority on 21.06.2021 on the ground that there was no powers to review an earlier order. It is the case of the petitioner that had the Order-In-Original dated 23.08.2019 been uploaded the petitioner could have filed an appeal under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021. 5.1 It is the case of the petitioners that the Orders-In-Original dated 31.3.2021 and 29.4.2021 were never uploaded on the GST Portal and hence the petitioners were prevented from filing the appeals which can only be filed through electronic mode and not manually as the process other than electronic mode is not notified. It is the case of the petitioners that the hand delivery of the orders was given on 6.1.2023 and an appeal has been filed in the service tax matter in connection with the order dated 31.3.2021 whereas since the order dated 29.4.2021 wasn't uploaded the petitioners are prevented from filing appeal and therefore the consequential debit freezing of accounts is bad. 6. Mr. Anandodaya Mishra Learned Advocate for the petitioners would make the following submissions: Special Civil Application NO. 14867 of 2022 (i) The order dated 23.08.2019 ought to have been uploaded on the web portal in accordance with Rule 26(1) and Rule 26(3) of the CGST Rules, 2017. In the matter of the petitioner itself in Special Civil Application No. 15473 of 2019, the issue of refund was held admissible and therefore even if no appeal was filed, the principle ought to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of Special Civil Application No. 15473 of 2019, the same was unconnected inasmuch as before the Court could decide the issue on 11.3.2020, the refund application in the present issue was rejected on 23.08.2019. 7.1 Ms. Sancheti would submit that the prayer for recredit of the rejected refund claim in the electronic register of the petitioner cannot be done as in accordance with Rule 93 of the CGST Rules, the petitioner had not given an undertaking. If the claim of refund is rejected, no refund is granted. Alternatively, an undertaking has to be filed that no appeal shall be filed. No such undertaking has been given, hence no refund or re-credit can be made. 7.2 On the question of inability to file an appeal through an electronic mode as mandated, she would submit that the appeal can also be filed without the order being uploaded. A manual copy of the order was available to the petitioner and therefore in accordance with the Rule the form only required details of the number of the O-I-O on the portal which could have been lodged. Non-uploading of the Original Order had no connection with the filing of the appeal in the electronic mode. Submissions in Special Civil App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the date of service of the order. He would submit that reading Rule 108 with Sections 107 and 169 together would indicate that the limitation period commenced from the date a copy was manually received. Uploading of orders is only an alternative mode of service and under Rule 142(5) uploading being mandatory cannot be construed to mean that no appeal can be filed unless the orders are uploaded. Communication of the order manually also could facilitate the assessee to file an appeal in the electronic mode and failure to upload an order need not mean inability to file an Appeal under Rule 108. (f) Relying on the affidavit-in-reply, it is submitted that various letters were written on 26.10.2021; 29.11.2021; 23.2.2022; 3.06.2022 and 14.10.2022 requesting the taxpayer to either pay up the government dues or intimate the details of filing of the appeal. (g) That the recovery proceedings were in accordance with the provisions of Section 79 of the CGST Act and Section 87 of the Finance Act and under Section 90 of the CGST Act the partners are liable to pay the dues. Further Section 83 is not at all attracted in the facts of this case as what is invoked is Section 79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Waghodia Road, Vadodara as well as Shri Darpan Shah, main partner of Sukhdham Upvan, Waghodia Road, Vadodara. 8. Both the SCNs were made answerable to the Deputy / Assistant Commissioner, CGST C.E., Division-VII, Vadodara-I. The taxpayer was given the opportunity of Personal Hearing on 09.09.2020, 08.10.2020, 27.10.2020 and 23.12.2020. However, inspite of receipt of Personal Hearing letters, the taxpayer failed to appear for personal hearing on any of the 4 dates given. Therefore, the said notices were adjudicated by the Assistant Commissioner, CGST C.E., Division-VII, Vadodara-I vide Order-in-Original No. GSTD-VII/ VAD-I/AC/KDN/GST/04/S. Upvan/2020-21 dated 31.03.2021 and Order-in-Original No. GSTD-VII/VAD-I/AC/KDN/GST/01/S. Upvan/2021-22 dated 29.04.2021. These Order-in-Originals were delivered to Shri Darpan Shah, Authorized Signatory of the firm and Co-noticee in the instant case on 14.06.2021 which is a valid way of Serving the Order under Section 169(1)(a) of CGST Act, 2017. The demand liability confirmed in Order-in-Original is as under: Tax Tax/Penalty Payable (Rs.) as per Order-in-Original No. GSTD-VII/VAD-I/AC/KDN/GST/04/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared to be holding share of 11% in the partnership firm) and is aggrieved against the action of the department has filed the present petition. In the petition, the petitioner Shri Hasit Desai inter-alia submitted that the seizure of bank accounts has resulted into financial hardships to the petitioner, thereby, praying before the Hon ble Court to release saving account of the petitioner by quashing the letters dated 09.12.2022 12.12.2022 of respondent authority No. 3 i.e. Superintendent. (12) The petitioner is also challenging the passing of ex-parte order by Respondent No. 2 i.e. the Assistant Commissioner, Div-VII, CGST C.E., Vadodara-I and non-uploading of the same on GSTN Portal and thereby, preventing the filing of appeal by the petitioner against the Orders dated 31.03.2021 29.04.2021 passed by the Respondent No. 2. The petitioner has also sought the Hon ble Court to quash and set aside the Impugned Orders passed by the Respondent No. 2 and decide them afresh after affording an opportunity of hearing. (13) It is reiterated that the Competent Authority (Joint Director, DGGI Surat) issued Show Cause Notice No. DGGI/BRU/36-09/2020-21 dated 04.06.2020 to M/s. Sukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; Or The relevant provision of the section 37C of the Central Excise Act, 1944 is reproduced as below: 37C. Service of decisions, orders, summons, etc. (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served, (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any; (16) The registration of the taxpayer was suo-moto cancelled for non-filing of GST returns since the inception i.e. July-2017 and since then the taxpayer never applied for cancellation of revocation of registration. Thus, the respondent was of the view to hand deliver the Order-in-Originals to Authorized Signatory as they were less likely to check ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such partner shall be liable to pay tax, interest or penalty due up to the date of his retirement whether determined or not, on that date: Provided further that if no such intimation is given within one month from the date of retirement, the liability of such partner under the first proviso shall continue until the date on which such intimation is received by the Commissioner. (20) In view of the above, it was each partner s liability to pay the Service Tax and GST during the active period of Project from April-2015 to March-2019. As per the partnership deed, the petitioner is designated as Working Partner who shall engage himself actively in conducting the affairs of partnership firm. Thus, the petitioner should have been aware of the non-payment of Service Tax, GST liability; investigation conducted by DGGI, notices and orders issued to the firm. Even after the retirement, as the case may be, it is their liability till the date of intimation to the Commissioner. However, the petitioner failed to intimate the Commissioner about the dissolution of partnership deed since 2019 in case the partnership deed ceased to exist or dissolved as the case may be as claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The relevant provision of Section 87 of the Finance Act, 1994 is reproduced as below: Recovery of any amount due to Central Government. 87. Where any amount payable by a person to the credit of the Central Government under any of the provisions of this Chapter or of the rules made thereunder is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below:- (a) the Central Excise Officer may deduct or may require any other Central Excise Officer or any officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the said Central Excise Officer or any officer of customs; (b) (i) the Central Excise Officer may, by notice inwriting, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In Special Civil Application No. 14867 of 2022, the case of the petitioner is that, had the Order in Original dated 23.08.2019 been uploaded, an appeal could have been filed through electronic mode, the only mode available and that as it could not be so filed, the subsequent order dated 3.12.2020 on the ground that in absence of an appeal to the earlier order, the rejection of refund claims was bad. 11.1 Reading of the subsequent order dated 3.12.2020 indicate that the petitioner, rather than filing an appeal against the order of 23.08.2019, submitted a fresh application though the order of 23.08.2019 had rejected the application. The order further indicates that by the time the High Court had decided the earlier claim of refund of Rs. 99,05,156/- on 11.3.2020, the order of rejection dated 23.08.2019 was already in existence and was not challenged in Appeal or by a petition. The submission of the learned counsel for the petitioner therefore that the authorities ignored the High Court decision in a case between the same parties is misconceived as even before the decision of the High Court, the claim in the present case already stood rejected on 23.08.2019. The only remedy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r whom it is intended or his authorised agent, if any; SECTION 107 Appeals to Appellate Authority (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in subsection (1). (3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved. Rule 26(2) (3) Method of Authentication (1) *** (2) (2) Each document including the return furnished online shall be signed or verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provided further that where the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-01 , the date of submission of such copy shall be considered as the date of filing of appeal.] Explanation . -For the provisions of this rule, the appeal shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner admits that the order dated 23.08.2019 was served manually. Even in the case of partners, letters were written on several dates to pay up the dues or intimate the filing of the appeal. 14. Heavy reliance is placed by the learned counsel for the petitioners on the judgement of this Court in the case of Gujarat Petronet (supra). Reading the judgement in its entirety would indicate that the petitioner therein could not file an appeal due to technical glitches on the portal. Paras 8 to 9 of the judgement read as under: 8. On perusal of the above provisions, it is apparent that the appeal is required to be filed in electronic mode only and if any other mode is to be prescribed then the same is required to be notified by way of a notification. There is nothing on record to show that any notification has been issued for manual filing of an appeal. In such circumstances, though the physical copy of the adjudication order was handed over to the petitioner, the time period to file appeal would start only when the order is uploaded on the GST portal. Without the order being uploaded, the petitioner could not file the appeal and therefore, the contention raised on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joseph (supra), the only question that was considered was when should the limitation start running. Paras 8 to 15 of the judgement read as under: 8. It is the admitted case of both the petitioner and the respondents that the orders impugned in the appeals, though dated 29.03.2019, were never uploaded in the web portal to enable the petitioner to prefer the electronic filing of appeals, as prescribed. There is no quarrel that the Commissioner has not issued any notification specifying any other form of appeal. However, on the basis of receipt of a copy of the order on 10.04.2019, the petitioner preferred appeals manually only on 09.01.2020, with a delay of 184 days. Thus, after referring to the decision in Debabrata Mishra v. Commissioner of Central Tax and GST [2020 (36) G.S.T.L. 325 (Ori)] as well as the judgment in Assistant Commissioner (CT), LTU, Kakinada Ors. v. Glaxo Smith Kline Consumer Health Care Limited [2020 (36) G.S.T.L. 305], the Appellate Authority dismissed the appeals as time-barred. 9. While dismissing the appeals as time-barred, the Appellate Authority went in a mechanical manner without appreciating that the orders that were impugned before the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded the matter back for fresh consideration of the appeal. The observations of the Court are relevant in this context: 8. On a perusal of the above provisions, it is apparent that the appeal is required to be filed in electronic mode only and if any other mode is to be prescribed then the same is required to be notified by way of a notification. There is nothing on record to show that any notification has been issued for manual filing of an appeal. In such circumstances, though the physical copy of the adjudication order was handed over to the petitioner, the time period to file appeal would start only when the order is uploaded on the GST portal. Without the order being uploaded, the petitioner could not file the appeal and therefore, the contention raised on behalf of the respondents that the uploading of the order and filing of the appeal are two different processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has to be filed within three months. In the present case, the impugned assessment order passed by the respondent no. 4 was communicated by email to the General Manager of the petitioner on April 20, 2019. It is not the case of the petitioner that the General Manager was not competent and/or not authorised to receive the communication of the impugned assessment order on behalf of the petitioner. Failure on the part of the General Manager to inform the petitioner regarding receipt of the impugned assessment order will not have the effect of extending the period of limitation prescribed under subsection (1) of Section 107 of the said Act. The language of sub-section (1) or (4) of Section 107 of the said Act leaves no scope for any ambiguity. The period of three months prescribed will commence from the date on which the said decision or order is communicated to the petitioner. Sub-section (4) of Section 107 of the said Act provides for a window enabling the assessee to present the appeal within a further period of one month, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy. Explanation .- For the provisions of this rule, the appeal shall be treated as filed only when the final acknowledgment, indicating the appeal number, is issued. 11. A brief reference to sub-rule (2) of Rule 108 is required to be made which provides that the grounds of appeal and form of verification as contained in Form GST APL-01 shall be signed in the manner specified in Rule 26. Rule 26 provides for the method of authentication and apart from the applications, replies, appeals, it is provided that any other documents required to be submitted under the provisions of these rules shall be so submitted electronically with digital signature certificate or through e-signature as specified under the provisions of Information Technology Act, 2000 or verified by any other mode of signature or verification as notified by the board in this behalf. Sub-rule (2) (c) of Rule 26 provides for the documents to be signed or verified through electronic verification code, in the case of company, by the chief executive officer or authorised signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievances of a person who may be aggrieved by the order of an adjudicatory authority. In this context, we may usefully refer to para 20 of the decision of the Hon ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada and ors. Vs. Glaxo Smith Kline Consumer Health Care Limited. Their Lordships dealt with the principle regarding the statutory command by the legislation as regards the limitation, the relevant portion of paragraph 20 which reads thus :- 20. 15. From the aforesaid decisions, it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, has ruled that there is no conflict of opinion in Antulay case [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602] or in Union Carbide Corpn. Case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584] with the principle set down in Prem Chand Garg v. Excise Commr., AIR 1963 SC 996 . Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court observed thus: 11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under subsection (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned assessment orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in ITC Ltd. Anr. Vs. Union of India. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the proceedings before the High Court and before this Court, the Court permitted the petitioner therein to resort to remedy of statutory appeal and directed the appellate authority to decide the appeal on merits. This obviously was done on the basis of concession given by the counsel appearing for the Revenue as noted in paragraph 2(1) of the order, which reads thus: 2. The High Court has dismissed the writ petition filed by the petitioner on the ground that there is an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Learned counsel for the petitioner submits that the petitioner will face certain difficulties in pursuing this remedy: (1) This rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) was considered and the Division Bench held as under in Para 17 thereof: 17. The decision relied upon by the petitioner in the case of Gujarat Tate Petronet Limited (supra) is rendered in a different fact situation. The petitioner therein approached the adjudicating authority time and again for uploading the order on the GST portal, however, the adjudicating authority was unable to do so due to certain technical issues. The order passed by the adjudicating authority was not served nor was it uploaded on the GST portal and due to nonavailability of the refund order, the petitioner could not prefer the appeal in the electronic form as required under the GST laws. Reverting to the facts of the present case, though the petitioner was in receipt of the impugned assessment order by email on April 20, 2019 itself, the petitioner applied for certified true copy of the order dated April 20, 2019 on November 5, 2019, only after the recovery proceedings were initiated against the petitioner by attaching the bank account on July 1, 2019. The petitioner has by such belated action lost the statutory remedy of appeal. Consequently, in view of the law laid down by the Apex Court, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
