Stay on Tax Recovery Granted Due to Non-constitution of Appellate Tribunal; Appeal Permitted Once Tribunal is Operational.

The HC addressed the non-constitution of the Appellate Tribunal under the CGST and OGST Acts, acknowledging the petitioner's deprivation of the statutory appeal remedy. The Court granted a conditional stay on tax recovery, directing the petitioner to file an appeal under Section 112 once the Tribunal is functional. If the petitioner fails to file the appeal within the prescribed timeline post-Tribunal constitution, the respondent-Authorities may proceed as per law. The writ petition was disposed of with these directives, ensuring the petitioner avails the statutory remedy of appeal when the Tribunal is established.

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Issues:
1. Constitution of Appellate Tribunal under CGST Act and OGST Act.
2. Availability of statutory remedy of Appeal.
3. Interpretation of Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
4. Clarification by Central Board of Indirect Taxes and Customs regarding appeal process.
5. Granting of stay on recovery of balance tax amount.
6. Requirement for petitioner to file appeal once Tribunal is constituted.
7. Consequences of not availing the remedy of appeal.

Analysis:
The High Court dealt with a matter concerning the non-constitution of the Appellate Tribunal under the Central Goods and Services Tax Act, 2017 (CGST Act) and Odisha Goods and Services Tax Act, 2017 (OGST Act). It was acknowledged that the petitioner was deprived of the statutory remedy of Appeal due to the absence of the Appellate Tribunal as required by law. The Government of India, based on the recommendation of the GST Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 to address this issue. The order clarified the timelines for filing appeals in the absence of the Appellate Tribunal, providing specific dates for initiating the appeal process.

In line with the Removal of Difficulties Order, the Central Board of Indirect Taxes and Customs issued a circular in March 2020, emphasizing the procedure for filing appeals considering the non-constitution of the Appellate Tribunal. The circular outlined that the time limit for filing appeals would commence from the date the President or State President of the Tribunal enters office. It further advised the appellate authorities to expedite the disposal of pending appeals without waiting for the Tribunal's constitution.

The Court, considering the Orders and Circular, directed that the petitioner be granted a stay on the recovery of the balance tax amount, subject to certain conditions. It emphasized that the stay on deposit of the statutory amount should not be open-ended and required the petitioner to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted and functional. Failure to file the appeal within the specified period upon the Tribunal's constitution would allow the respondent-Authorities to proceed with the matter as per the law.

Ultimately, the Court disposed of the writ petition, providing specific directions for the petitioner to avail the statutory remedy of appeal once the Appellate Tribunal is established, while also allowing the respondent-Authorities to take further action if the petitioner chooses not to file the appeal within the specified timeline post-Tribunal constitution.

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