2024 (11) TMI 444 - HC - GST

Stay Granted on Appeal Rights under CGST/OGST Act Amid Tribunal Non-constitution; Court Directs Urgent Order Issuance.

The HC addressed the appealability under the CGST/OGST Act, noting the non-constitution of the Appellate Tribunal, which hindered the petitioner's ... 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 CGST/OGST Act.2. Non-constitution of the Appellate Tribunal affecting statutory remedy.3. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.4. Circular No.132/2/2020-GST on appeal procedure.5. Disposition of the writ petition due to non-constitution of the Tribunal.Analysis:The judgment addressed the issue of appealability under the CGST/OGST Act, acknowledging that the order in question was appealable under Section 112 of the Acts. However, a key point of contention was the non-constitution of the Appellate Tribunal, which deprived the petitioner of its statutory remedy of appeal and the corresponding benefits under subsections 8 & 9 of section 112. The Government of India, under section 172 of the CGST Act, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, providing clarity on calculating time periods for filing appeals in such cases.Furthermore, the judgment highlighted Circular No.132/2/2020-GST, which clarified the appeal procedure in cases where the Appellate Tribunal had not been constituted. The Circular emphasized that the time limit for making an application to the appellate tribunal would be counted from the date on which the President or the State President enters office. It advised appellate authorities to dispose of pending appeals promptly without waiting for the constitution of the tribunal.In light of the above legal provisions and clarifications, the Court decided to dispose of the writ petition by granting the petitioner the statutory benefit of stay under Sub-Section 9 of Section 112 of the Acts. This stay was subject to the verification of the deposit of a specified amount. The Court also mandated that the petitioner must file an appeal under Section 112 once the Tribunal is constituted and functional, observing all statutory requirements for appeal submission.Lastly, the judgment provided the petitioner with the liberty to choose not to file an appeal within the specified period upon the constitution of the Tribunal. In such a scenario, the respondent authorities were granted the freedom to proceed further in the matter in accordance with the law. With these directives and observations, the writ petition was disposed of, and an urgent certified copy of the order was to be issued as per rules.