TaxTMI 
TaxTMI 
2023 (8) TMI 1215
X X X X Extracts X X X X
X X X X Extracts X X X X
.... whereby appeal having been filed by the petitioner under Section 107(1) of the Act, laying therein challenge to order dated 30.8.2022, passed by the Joint Commissioner of State Taxes and Excise, Central Enforcement Zone, Una, came to be dismissed. 2. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No. 1 and 2. 3. Having regard to the nature of prayer made in the instant proceedings as well as order proposed to be passed by this Court, this Court sees no necessity to call for the reply of the aforesaid respondents. 4. For having bird's eye view, facts which may be relevant for adjudication of the case at hand are that on 9.8.2021, respondent No.1 issued a show cause notice titled " intimation of tax as being payable under Section 73 (5)/74(5)" thereby intimating the petitioner with regard to its liability to pay the tax (Annexure P-1). After receipt of the aforesaid show cause notice, petitioner filed representation but vide order dated 30.8.2022, respondent No.1 directed the petitioner to deposit the due amount of tax, interest and penalty within three weeks of passing of the order (Annexure P-2). Against....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed in terms of Section 109 of the Central Goods and Services Tax 2017 not only entertained the petition under Articles 226 and 227 of the Constitution of India, but also ordered that impugned order shall not be given effect until two weeks after the period prescribed for filing an appeal to the appellate authority under Clause-4.2 of the circular dated 18.5.2020, issued by the Central Board of Direct taxes is over. 8. Before ascertaining the correctness and genuineness of the rival submissions made by the learned counsel for the parties, it would be apt to take note of the following provisions of the act: "CHAPTER-XVIII APPEALS AND REVISION 107. Appeals to Appellate Authority.-(1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act, 2017 (No.12 of 2017) by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any proceeding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a party during hearing of the appeal. (10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order : Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t to be appealed against is communicated to the person preferring the appeal. (2) The Appellate Tribunal may, in its discretion, refuse to admit any such appeal where the tax or input tax credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined by such order, does not exceed fifty thousand rupees. (3) The Commissioner may, on his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any order passed by the Appellate Authority or the Revisional Authority under this Act or under the Central Goods and Services Tax Act, 2017 (No.12 of 2017) for the purpose of satisfying himself as to the legality or propriety of the said order and may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within six months from the date on which the said order has been passed for determination of such points arising out of the said order as may be specified by the Commissioner in his order. (4) Where in pursuance of an order under sub-section (3) the authorised officer makes an application to the Appellate Tribunal, such application shall b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the Appellate Authority, or the Revisional Authority or to the original adjudicating authority, with such directions as it may think fit, for a fresh adjudication or decision after taking additional evidence, if necessary. (2) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (3) The Appellate Tribunal may amend any order passed by it under subsection (1) so as to rectify any error apparent on the face of the record, if such error is noticed by it on its own accord, or is brought to its notice by the Commissioner or the Commissioner of central tax or the other party to the appeal within a period of three months from the date of the order :....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he time limit specified in the aforesaid Section. To remove the aforesaid difficulty, Ministry of Finance in exercise of powers conferred under Goods and Services Tax Act, 2017 on the recommendation of the Council passed order dated 3.12.2019, wherein it came to be clarified that for the purpose of calculating the three months from the date on which order sought to be appealed is communicated to the person preferring the appeal in sub section 1 of Section 112, the start of three months period shall be considered to be the later of the following dates; i) date of communication of order; or ii) the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. It also came to be clarified vide aforesaid order that period of six months from the date of which such order has been passed in sub-section 3 of Section 112 would commence from the date of communication of order or from the date on which President or State President as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. 10. Since in the case at hand, appellate Tribunal in terms of provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the qualification, appointment and conditions of service of its members, were challenged in WP No. 21147 of 2018 titled as Revenue Bar Association Vs. Union of India before the Madras High Court. ix) These Rules were challenged and subsequently were struck down by Hon'ble Supreme Court in its order dated 13.11.2019 in CA No. 8588 of 2019 in the case of Rojer Mathews vs. Union of India. x) While doing so, the Hon'ble Apex Court laid down certain basic tenets to be followed and directed framing of fresh rules. Accordingly, Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 were brought in place. The said Rules 2020 were also challenged and in its order dated 27.11.2020 in WP(C) No. 804 of 2020 in the case of Madras Bar Association Vs. Union of India, Hon'ble Supreme Court of India directed certain changes to be brought in the Rules. Later, incorporating certain important aspects of the principles, Central Government promulgated the Tribunal Reforms Ordinance, 2021 which has now been replaced by the Tribunal Reforms Act 2021. xi) In its 47th meeting held on 28-29 June 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of order or date on which the President or the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later. 4.3 Hence, as of now, the prescribed time limit to make application to appellate tribunal will be counted from the date on which President or the State President enters office. The appellate authority while passing order, may mention in the preamble that an appeal may be made to the appellate tribunal whenever it is constituted within three months from the President or the State President enters office. Accordingly, it is advised that the appellate authorities may dispose all pending appeals expeditiously without waiting for the constitution of the appellate tribunal. 5. It is requested that suitable trade notices may be issued to publicize the contents of this Circular." The State Authorities have also issued an identical Trade Circular with some modifications. 7. Therefore, what emerges from the Circular and Affidavit filed by the Chairman of the Board is that the appeal to the Appellate Tribunal can be filed within three months (six months in the case of Appeals by the Government) from the date of the communi....