2024 (11) TMI 438 - HC - GST

Stay on Tax Recovery Granted; Appeal Required Once Tribunal Formed, Ensuring Fairness in Absence of Appellate Tribunal.

The HC ruled that due to the non-constitution of the Appellate Tribunal under the CGST/OGST Act, the petitioner was deprived of the statutory appeal ... 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. Appealability of the order under the CGST/OGST Act, 2017 due to non-constitution of the Appellate Tribunal.2. Interpretation and application of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.3. Statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act.4. Requirement for filing an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted.5. Consequences if the petitioner does not avail the remedy of appeal.The High Court addressed the issue of appealability of an order under the CGST/OGST Act, 2017 due to the non-constitution of the Appellate Tribunal. It was acknowledged that the petitioner was deprived of the statutory remedy of appeal and the corresponding benefits due to the absence of the Tribunal as required under section 109 of the Acts. The Government of India issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, providing clarification on the calculation of time periods for filing appeals in such cases. The Central Board of Indirect Taxes and Customs issued a circular further explaining the procedure in cases where the Appellate Tribunal had not been constituted. The Court considered these orders and circulars in deciding the case.Regarding the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, the Court held that the petitioner should be granted the benefit of stay subject to the deposit of a specified sum. The Court emphasized that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the authorities. It was ruled that the recovery of the balance amount should be stayed until further notice.The Court also addressed the requirement for the petitioner to file an appeal under Section 112 of the CGST/OGST Act once the Tribunal is constituted. It was decided that the petitioner must file the appeal observing the statutory requirements after the Tribunal becomes functional. Failure to do so would allow the authorities to proceed further in the matter in accordance with the law.In case the petitioner chooses not to avail the remedy of appeal by filing an appeal under Section 112 of the CGST/OGST Act before the Tribunal within the specified period, the authorities would be permitted to take further action in the matter. The Court disposed of the writ petition with these directions and observations, providing an urgent certified copy of the order.