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TMI Blog2024 (5) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... preferring appeals against those orders and the appeals were being dismissed on the ground of delay. To overcome such situation, the impugned notification was brought in so that the appeals could be heard and the delay if any caused in preferring the appeal could be condoned. In the case in hand, admittedly, the appeals were filed by the petitioner-Company before the Joint Commissioner (Appeals), State Tax with some delay and the said appeals stood dismissed vide order dated 05.12.2023 (Annexure P/1) in light of clause 5 of the impugned notification. The learned Joint Commissioner has observed that the appeal was filed by the petitioner Company after a delay of 1 year and 1 month from the prescribed time limit and no cogent reason was afforded for such an inordinate delay. There are no error in the order (Annexure P/1) passed by the respondent No. 4. So far as declaring clause 5 of the impugned notification is concerned, a plain reading of the said clause would make it amply clear that no appeal would lie under this Notification in respect of a demand not involving tax. It is a case where the petitioner-Company is claiming refund of tax which was rejected and the appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of certiorari, or any other writ, order or direction calling for records in relation to Appeal Case No. 336/GST/2023; And 10.4 Issue a writ of certiorari or a writ in the nature of certiorari, or any other writ, order or direction setting aside the impugned Order dated 05.12.2023 passed in Appeal Case No. 336/GST/2023 by the Joint Commissioner (Appeal), State Tax, Bilaspur (Annexure P-1) whereby the Petitioner s Appeal has been summarily rejected; AND 10.5 Issue a writ of mandamus or a writ in the nature of mandamus, or any other writ, order or direction thereby a holding that the impugned Order dated 05.12.2023 passed in Appeal Case No. 336/GST/2023 (Annexure P-1) is contrary to Notification No. 53/2023 Central Tax dated 02.11.2023 (Annexure P-3) which is in favour of the Petitioner and directing the Respondent No. 4 to restore the appeal and hear the same on merits without raising the issue of limitation under Section 107(1) of the CGST Act; AND / OR 10.6 Alternatively, issue a writ or an order or a direction condoning the delay in filing of the Appeal No. 336 and directing the Respondent No. 4 to hear the same on merits without raising the issue of limitation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act (as it stood during the relevant period) encapsulated two ways/options in which the taxpayer making the 'zero rated supply can claim refund in accordance with the provisions of Section 54 of the CGST Act. The two options stipulated under Section 16(3) were: (a) Taxpayer may supply goods/services under bond or letter of undertaking, without payment of Integrated Tax and claim refund of unutilised input tax credit; or (b) taxpayer may supply goods/services, on payment of Integrated Tax and claim refund of such tax paid on goods / services supplied. 5. The petitioner has availed the benefit of Section 16(3) by resorting to both the options in few months. The petitioner's factory premises are located in a remote location at Korba. To ensure smooth and seamless functioning of the business operations, the petitioner has established/constructed a residential township for the staff working at the petitioner's factory, where aluminium is manufactured. It has established / constructed the township primarily for its staff given the relative remoteness of the area. The township has been established/constructed by the petitioner in order to provide adequate housing facility to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations. The Respondent No. 5 thereafter passed the order in Form GST RFD-06 sanctioning an amount of INR 49,08,582 out of the total amount claimed along with the amount provisionally granted. An amount of INR 18,53,986 was rejected on the ground that this portion pertain to supply of electricity to township which is not in the course or furtherance of business. The petitioner never manually received this order which was apparently passed on 07.04.2022. Further, the petitioner physically received the order partially rejecting the refund application only on 7 August 2023, ie., after a period of more than one year after passing of the order when it was physically received by it. The fact that an order has been uploaded on the portal was never 'communicated to the petitioner. Once the petitioner received the physical copy of the order partially rejecting its refund application, the petitioner preferred an appeal before the respondent No. 4 on 01.09.2023, within the prescribed time limit of three months under Section 107(1) of the CGST Act, i.e., it filed the appeal within three months from the date of 'communication', as is required under Section 107 of the CGST Act. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned notification provides a benefit that for cases in which appeals could not be lodged within time, the appeals can be filed by 31 January 2024. However, Clause 5 of the impugned Notification provides that the benefit thereunder is not available in cases where there is no demand of tax. The respondent No. 4 by relying on this clause has taken a view that the benefit cannot be granted to the petitioner and has accordingly dismissed the appeal and as such, the constitutional validity of clause 5 of the impugned Notification is being challenged to the extent of the interpretation adopted by the Respondent No. 4. 10. Mr. Raichandani further submits that the impugned notification in the manner it is being read by the respondent no. 4 is liable to be struck down on grounds of creating a hostile discrimination and being arbitrary and violative of Article 14 of the Constitution of India. It creates a hostile and an unreasonable discrimination between two class of people who are similarly situated. The impugned Notification was issued pursuant to the trade facilitation measures announced post the 52nd meeting of the Goods and Services Tax Council ( GST Council ). The interpretation acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of Notification No. 53 without properly appreciating its legal purport and context and denies the benefit thereof to the petitioner erroneously. It suffers from gross infirmities, is manifestly arbitrary, devoid of any merit thereby violating the constitutional provisions under Article 14 of Constitution of India. Hence, the same is liable to be quashed and set aside on this ground alone with a direction to the respondent No. 4 to hear the case on merits. 12. Mr. Raichandani would further submit that the impugned order (Annexuer P/1 is arbitrary, unreasonable and suffers from gross infirmities inasmuch as it failed to appreciate that the order of rejection of refund was never communicated to the petitioner as contemplated under section 107 of the CGST Act. Section 107(1) of the CGST Act states that the aggrieved person shall file an appeal within three months from the date of 'communication' of the order to the said person. Meaning thereby, that the limitation period will statutorily have to be calculated from the date on which the aggrieved person is 'communicated' about an order. In the present case, the petitioner was able to obtain a physical copy of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts are similar in all these petitions. Only the date of making application for refund, the amount claimed, issuance of show cause notice, reply to the show cause notice, rejection of the application for refund, date of receiving of the physical copy of the order, date of filing appeal and rejection of the appeal by the appellate authorities are different which, for the sake of convenience, is reproduced in a tabular form which reads as under: WPT No. Application for refund was filed by the petitioner Company on Show cause notice was issued by the Asst. Comm. (Sales Tax) on Reply to the show cause notices was given by the petitioner Company on Refund Sanction/ Rejection order was passed by Asst. Comm. on Copy of order was received by the petitioner Company on Appeal was preferred against the said order before the respondent No. 4/ additional submissions were made Appeal was rejected by Joint Comm. (Appeals) State Tax, on 53/2024 05.01.2022 for for the month of November, 2021 Rs. 67625686/- 05.03.2022 24.03.2022 07.04.2022 07.08.202 01.09.2023 / 28.11.2023 05.12.2023 54/2024 10.05.2021 for the month of March, 2021 Rs. 85287548 13.07.2021 14.06.2021 27.07.2021 07.08.2023 01.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation (Annexure P/3) is concerned, the relevant portion of Notification No. 53 is extracted hereunder: S.O (E). In exercise of the powers conferred by section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act), the Central Government, on the recommendations of the Council, hereby notifies taxable persons who could not file an appeal against the order passed by the proper officer on or before the 31st day of March, 2023 under section 73 or 74 of the said Act (hereinafter referred to as the said order), within the time period specified in sub-section (1) of section 107 read with sub-section (4) of section 107 of the said Act, and the taxable persons whose appeal against the said order was rejected solely on the grounds that the said appeal was not filed within the time period specified in section 107, as the class of persons (hereinafter referred to as the said person) who shall follow the following special procedure for filing appeals in such cases: (2) The said person shall file an appeal against the said order in FORM GST APL-01 in accordance with subsection (1) of Section 107 of the said Act, on or before 31st day of Januar ..... 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