TaxTMI 
TaxTMI 
2024 (12) TMI 1354
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....er in Appeal No. 132 dated 28th April, 2023 (hereinafter 'OIA No. 132') 3. These appeals arise from various refund applications filed by the Petitioner before the Respondent No.3-Assistant Commissioner CGST (hereinafter 'Proper Officer') claiming the accumulated input credit for the months of May, 2019 to December, 2019 and January, 2020 to May, 2020. These refund applications were disposed of by the Proper Officer vide various orders (hereinafter 'Orders in Original'). The tabular statement showing the various dates on which the Orders in Original were passed by the Proper Officer in relation to the Petitioner's refund applications, as well as the corresponding dates on which appeals against said orders were filed, both physically and online, is set out below: A. OIA No. 105 to 115 dated 18th April, 2023 S.No. Relevant period and OIO against which appeal filed Appeal No. Date of online filing Date of physical filing 1. May 2019 OIO dated 19.08.2021 321/GST/Appeal-1/East/2022 dated 15.11.22 17.11.2021 15.11.2022 2. June 2019 OIO dated 26.08.2021 320/GST/Appeal-1/East/2022 dated 15.11.22 17.11.2021 15.11.2022 3. July 2019 OIO ....
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....ordance with the relevant sections and rules or not? 5. The refund applications were filed under Section 54 of the CGST Act, 2017 and the Order in Original was passed under Section 54 (7) of the CGST Act, 2017. Such orders are appealable to the Appellate Authority i.e., Respondent No. 2 - Additional Commissioner, CGST, under Section 107 of CGST Act, 2017. For the present purposes Section 107 (1), Section 107 (4) from CGST Act, 2017 are relevant and are set out below: "107. Appeals to Appellate Authority.- (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act 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. xxxx (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month" 6. As per Section 107(1)....
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....ocuments, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately. (2) The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in rule 26. (3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal: Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appe....
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....ble nature. 11. The question is whether the appeals were filed within the time period in terms of Rule 108 or not and if filed with a delay, does it merit condonation. In the present case, the date of online filing in respect of all orders except order-in-appeal No. 132 are within the statutory period which is prescribed i.e., within 4 months. The delay is in the physical filing. 12. The question is as to whether the said delay can be condoned or not. Ld. Counsel for the Petitioner has relied upon the following decisions to contend that the various High Courts, pre-amendment, have condoned delays of a similar nature on the ground that the requirement of physical filing was merely a 'procedural requirement'. Pre Amendment judgements High Court Cases Orissa High Court M/s Atlas PVC Pipes Ltd. v. State of Odisha & Ors. 2022 (7) TMI 130-Orissa High Court WP(C) No. 14163/2022 Madras High Court M/s PKV Agencies v. Appellate Deputy Commissions (GST) (Appeals) 2023 (2) TMI 932-Madras High Court. 13. The Ld. Orissa High Court in its judgement dated 29th June 2022 in M/s Atlas PVC Pipes Ltd. (supra) in a similar appeal, deciding in favour of the assessee observe....
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....e HGST Rules, 2017, read as under- "(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filling the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the date of filling of the appeal shall be the date of the submission of such copy" After amendment, the amended rule is reproduced as under- "(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filling of appeal: Provided that where the ....
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.... that to provide clarity on the requirement of submission of certified copy of the order appealed against and the issuance of final acknowledgement by the appellate authority, an amendment might be made in sub-rule (3) of Rule 108 and in Rule 109 of the CGST rules, 2017 and Form GST APL-02. The details of the same are provided in the agenda note. The Council agreed with the recommendation of the Law Committee." 9. In light of the same, it is clear, that substitution was to provide clarity on the requirement of submission of certified copy of the order. If that were to be so, the substitution in order to clarify would have retrospective effect and accordingly, the substituted Rule ought to apply in the case of petitioner as well." 17. Based on the above judgements, the submission being made on behalf of the Petitioner is that the amendment dated 26th December 2022 which was made in Rule 108 shows that the said amendment was merely clarificatory in nature. It was merely clarifying the rule as it existed and, therefore, the benefit of online filing along with the electronic copy of the decision ought to be considered as sufficiently within the limitation period. T....