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TMI Blog2024 (3) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... 920 days from the last date of filing the appeal under Section 100(2) of the CGST Act, 2017. As per the statute, the Appellate Authority can condone a delay of 30 days beyond the normal period of thirty days given for filing the appeal provided, sufficient cause is shown by the Appellant. In the present case, there is a delay of 920 days which is way beyond the power of the Appellate authority to condone, let alone examining as to whether sufficient cause was shown by the Appellant. The law of limitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant - the filing of the appeal falls beyond the powers conferred under proviso to Section 100(2) of the COST Act, 2017. The ruling of the Hon ble Supreme Court in Singh Enterprises Vs CCE, Jamshedpur [ 2007 (12) TMI 11 - SUPREME COURT] is squarely applicable to the facts of the case. It is evident that this Appellate Authority being a creation of the statute is empowered to condone the delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of section 100 of the CGST Act, 2017 is concerned, the crucial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are in pari materia and have the same provisions in like matter and differ from each other only on few specific provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act, 2017 would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act, 2017. 2.1. The subject appeal was filed under Section 100(1) of the Tamilnadu Goods Services Tax Act 2017 / Central Goods Services Tax Act 2017 (hereinafter referred to the Act ) by M/S ARUN COOLING HOME (hereinafter referred to as Appellant ). The Appellant was registered under the GST Act vide GSTIN 33ABBFA8029RIZ4. The appeal was filed against the Order No. 07/ARA/2020 dated: 24.03.2021 passed by the Tamilnadu State A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) dated 28.06.2017. For the same reason, the exemption at Sl. No. 54 of the said Notification was not extended. 2.5. Aggrieved by the said order, the Appellant filed an appeal on 07.11.2023 against the order of AAR. In their grounds of appeal, the Appellant mainly contended that tamarind is a fruit, the outer cover of the tamarind pods are removed by the farmers themselves; then the seeds and strings are removed and no machineries were deployed; the removal of shell and seed is not a process as mentioned under explanation 2(d) of the Notification No. 12/2017-CT(Rate) dated 28.06.2017. They further added that the supporting service making tamarind fit for primary market it exempted under the Act. They also relied on the decision of AAR, Andhra Pradesh and AAR, Madhya Pradesh in similar cases. 3.1. The Appellant, while filing the appeal, had paid Rs. 10,000/- only towards SGST vide Form DRC-03, with debit entry No. DC3310230386132 dated 21, 10.2023. As per sub-rule (1) of Rule 106 of CGST Rules, 2017, a fee of Rs. 10,000/- under CGST is also required to be paid for filing an appeal against the AAR orders, which was not complied with by the Appellant. Further, the Appellant had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, we find that there is a delay in filing the appeal and non-payment of fee towards filing of appeal. Hence the same will be examined first before moving forward to decide the issue raised in the Appeal. 5.2. We find that the Appellant, after the personal hearing, has paid the fees of Rs. 10,000/- vide debit entry no. DC 3301240136185 dated 18.01.2624 under sub. rule (1) of Rule 106 of the CGST Rules, 2017, and submitted a copy of the DRC-03 challan dated 18.01.2024. Since the Appellant has paid the fees, the petition for condonation of delay is taken up for consideration. 5.3. We find that in terms of Section 100 of the CGST Act, 2017, an appeal should be filed within 30 days from the date of communication of the advance ruling order that is sought to be challenged. However, the Appellate Authority is empowered to allow the appeal to be presented within a further period not exceeding 30 days if it is satisfied that the Appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. Along with the appeal in Form ARA-02, the Appellant had filed an Affidavit for condonation of delay, wherein it was stated that Sh. D. Kabaleeswaran, the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation of 90 days from 01.03.2022. In the event of actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. We find that, even if we apply the ratio of the above decision of Hon ble Supreme Court to the present case, as per the Appellant s claim that their last date for filing the appeal falls between the period 15.03.2020 to 28.02.2022, the limitation to file the appeal is only 90 days from 01.03.2022 i.e., the last date would be 29.05.2022, whereas the appeal in the present case was filed on 07.11.2023, i.e., after a lapse of 527 days from 29.05.2022. Therefore, we find that reliance placed by the Appellant on the said Hon ble Supreme Court s judgement is of no avail to them. 5.7. We find that the Appellant has also placed reliance on Hon ble Calcutta High Court s Order in two cases. We find, in these cases, the delay in filing the appeal after the stipulated time limit was only 36 days in the case of Hon ble Calcutta High Court Order dated 09.01.2023 in WPA 2809 of 2022, and 27 days in the case of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or order. However, if the Commissioner is satisfied that the Appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority. has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 5.11. The aforesaid ruling of the Hon ble Supreme Court is squarely applicable to the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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