2024 (11) TMI 436 - HC - GST

Court Grants Interim Relief, Stays Recovery Due to Absence of CGST/OGST Appellate Tribunal; Sets Future Appeal Process.

The HC addressed the non-constitution of the Appellate Tribunal under the CGST/OGST Act, recognizing the petitioner's deprivation of appeal rights. The ... Maintainability of petition - availability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of Appellate Tribunal - HELD THAT:- It is not at all in dispute that the order impugned in this writ petition, which has been passed by the Authority under the Central Goods and Services Tax Act, 2017 (CGST Act)/Odisha Goods and Services Tax Act, 2017 (OGST Act) is appealable under Section 112 of the CGST/OGST Act, 2017. It is also not in dispute that because of non-constitution of the Appellate Tribunal as required under section 109 of the said Acts, the petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of subsections-8 & 9 of section 112 of the said Acts. Taking into account the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition. Petition disposed off. Issues:1. Applicability of statutory remedy of appeal under CGST/OGST Act due to non-constitution of Appellate Tribunal.2. Interpretation of Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 and Circular No.132/2/2020-GST.3. Granting of stay and relief to the petitioner in light of non-constitution of the Tribunal.4. Requirement for the petitioner to file an appeal once the Tribunal is constituted.5. Consequences if the petitioner does not avail the remedy of appeal.Analysis:The High Court addressed the issue of the statutory remedy of appeal under the CGST/OGST Act being affected by the non-constitution of the Appellate Tribunal. It was acknowledged that the petitioner was deprived of its appeal right due to the absence of the Tribunal, preventing the benefit of subsections-8 & 9 of section 112 of the Acts. The Court referred to the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, which clarified the calculation of time periods for filing appeals in such cases. The Court recognized the petitioner's desire to avail the statutory remedy of appeal under the provisions.Regarding the interpretation of the Removal of Difficulties Order and Circular No.132/2/2020-GST, the Court highlighted the provisions allowing appeals to be made within a specified period from the date of communication of the order or from the date the President of the Appellate Tribunal enters office. The Circular emphasized the need to expedite the disposal of pending appeals without waiting for the Tribunal's constitution.In light of the non-constitution of the Tribunal, the Court granted relief to the petitioner by extending the benefit of stay on the condition of depositing a certain amount. It was deemed unjust to deprive the petitioner of this benefit due to the authorities' failure to constitute the Tribunal. The Court stayed the recovery of the balance amount pending the appeal process.The Court emphasized the petitioner's obligation to file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional. This requirement was seen as essential for the appeal's consideration and to balance the equities involved. Failure to file the appeal within the specified period upon the Tribunal's constitution would allow the authorities to proceed further in accordance with the law.With the above directions and observations, the Court disposed of the writ petition, granting the petitioner relief while also outlining the necessary steps for future appeal proceedings. An urgent certified copy of the order was directed to be issued as per rules to ensure timely compliance with the Court's directives.