2024 (4) TMI 290 - HC - GST

Late-filed appeal rejected as time-barred but decided on merits; orders quashed, remitted, ignoring binding contrary view

The dominant issue was whether the appellate authority lawfully rejected the appeal as time-barred and yet proceeded to decide it on merits. The HC held ... Doctrine of comity - Condonation of delay in filing an Appeal - Violation of principles of natural justice - failure to appreciate the judgements of the Supreme Court, properly, for condoning the delay - HELD THAT:- Upon a perusal of the impugned order, it appears that the appellate authority has not properly appreciated the judgements of the Supreme Court for condoning the delay. Furthermore, having held that the matter was time barred, the appellate authority has proceeded to decide the matter on merits, which also unfortunately is without any basis in law as the appellate authority has not taken into consideration the judgement of the Bombay High Court in Vodafone Idea Limited v. Commissioner of CGST and Central Excise, Mumbai [2022 (7) TMI 645 - BOMBAY HIGH COURT] and the judgment of Delhi High Court in Vodafone Idea Limited v. Union of India and Others [2023 (10) TMI 934 - DELHI HIGH COURT]. It is to be noted that the judgement of the Bombay High Court was not taken up in appeal before the Supreme Court and the Central Board of Indirect Taxes and Customs decided not to file SLP against the order passed by the Bombay High Court - the decision of the Bombay High Court holds the field and since the issue is that under the Central Legislation, following the doctrine of comity, the judgement of the Bombay High Court would apply in the State of Uttar Pradesh too. The impugned orders is quashed and set aside with a direction upon the appellate authority to decide the issue afresh in light of the observations made hereinabove - Petition disposed off. Issues Involved:1. Improper appreciation of Supreme Court judgments for condoning delay.2. Decision on merits despite the matter being time-barred.3. Non-consideration of relevant High Court judgments (Bombay and Delhi High Courts).Summary:1. Improper Appreciation of Supreme Court Judgments for Condoning Delay:The appellate authority did not properly appreciate the judgments of the Supreme Court regarding the condonation of delay. The impugned order dated March 2, 2023, failed to align with established legal precedents.2. Decision on Merits Despite the Matter Being Time-Barred:Despite holding that the matter was time-barred, the appellate authority proceeded to decide the matter on merits. This decision lacked a legal basis as it did not consider the judgments of the Bombay High Court in *Vodafone Idea Limited v. Commissioner of CGST and Central Excise, Mumbai* (2022 SCC OnLine Bom 1485) and the Delhi High Court in *Vodafone Idea Limited v. Union of India and Others* (2023 SCC OnLine Del 6673).3. Non-Consideration of Relevant High Court Judgments:The Bombay High Court in *Vodafone Idea Limited* (Supra) clarified that the 'recipient' of services u/s 2(93) of the CGST Act is the Foreign Telecom Operator (FTO) and not the subscribers of the FTO. The court explained that services provided by Vodafone Idea Limited to FTOs, where consideration is payable by FTOs in convertible foreign exchange, constitute export of services. The judgment emphasized that the place of supply of services should be the location of the recipient of services (FTOs) and not the individual subscribers.Conclusion:The judgment of the Bombay High Court was not appealed before the Supreme Court, and the Central Board of Indirect Taxes and Customs decided not to file an SLP against it. Therefore, the decision of the Bombay High Court holds the field. Following the doctrine of comity, this judgment applies in the State of Uttar Pradesh as well. Consequently, the impugned orders dated March 2, 2023, are quashed and set aside. The appellate authority is directed to decide the issue afresh in light of the observations made.Disposition:The writ petitions are disposed of.