Case Name:

M/s. Polo International Vs. State Of U.P. (GST HC Case)

Key Takeaways:

- The Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 provides a solution for assessees facing difficulties in filing appeals due to the non-constitution of the Appellate Tribunal.

- The Order stipulates that the three-month period for filing an appeal shall be considered from the date the President or State President of the Appellate Tribunal enters office after its constitution under Section 109.

- Assessees can wait and avail the remedy of filing an appeal before the Tribunal once it is constituted, as per the provisions of the Removal of Difficulties Order.

Issue:

Whether the petitioner can bypass the statutory appeal remedy under Section 112 of the CGST Act on the ground that the Appellate Tribunal has not been constituted.

Facts:

The petitioner, M/S. POLO INTERNATIONAL, challenged the order dated 26.11.2019 passed in Appeal No. GST-02/19 by the respondent under Section 129(3) of the UP GST Act and CGST Act, 2017/Section 20 of the IGST Act, 2017, and the tax and penalty order No. 227 dated 05.09.2018 passed by the respondent under the same provisions. The petitioner also prayed for a refund of the amount deposited at the time of filing the appeal before the revenue authorities.

The petitioner filed a writ petition under Article 226 of the Constitution, bypassing the statutory appeal remedy under Section 112 of the CGST Act, on the ground that the Appellate Tribunal had not been constituted.

Arguments:

Petitioner’s Argument:

The petitioner bypassed the statutory appeal remedy under Section 112 of the CGST Act, citing the non-constitution of the Appellate Tribunal.

Respondent’s Argument:

The learned Standing Counsel pointed out that the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 addresses the difficulty faced by assessees in filing appeals due to the non-constitution of the Tribunal. The Order stipulates that the three-month period for filing an appeal shall be considered from the date the President or State President of the Appellate Tribunal enters office after its constitution under Section 109.

Key Legal Precedents:

The court did not cite any specific legal precedents in this case. However, it relied on the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, issued by the Government to address the difficulty faced by assessees in filing appeals due to the non-constitution of the Appellate Tribunal.

Judgement:

The court disposed of the petition, directing the petitioner to invoke the remedy of filing an appeal before the Appellate Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. The court noted that since the seized goods had already been released, no prejudice would be caused to the petitioner at the present moment.

FAQs:

Q1. What is the significance of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019?

A1. The Order provides a solution for assessees facing difficulties in filing appeals due to the non-constitution of the Appellate Tribunal. It stipulates that the three-month period for filing an appeal shall be considered from the date the President or State President of the Appellate Tribunal enters office after its constitution under Section 109.

Q2. Can the petitioner file an appeal before the Appellate Tribunal immediately?

A2. No, the petitioner cannot file an appeal immediately. The court directed the petitioner to invoke the appeal remedy before the Tribunal once it is constituted, as per the provisions of the Removal of Difficulties Order.

Q3. What was the reasoning behind the court’s decision?

A3. The court acknowledged the legal position pointed out by the learned Standing Counsel regarding the Removal of Difficulties Order. Since the seized goods had already been released, the court found no prejudice to the petitioner at the present moment and disposed of the petition, directing the petitioner to file an appeal before the Tribunal once constituted.

Q4. What are the implications of this case for other assessees?

A4. This case clarifies that assessees facing difficulties in filing appeals due to the non-constitution of the Appellate Tribunal can invoke the remedy of filing an appeal before the Tribunal once it is constituted, as per the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.

Heard Sri Rishi Raj Kapoor, learned counsel for the petitioner and Sri B.K. Pandey, learned Standing Counsel for the State respondents.

The petitioner has preferred the instant petition under Article 226 of the Constitution challenging the order dated 26.11.2019 passed in Appeal No.GST-02/19 by respondent no.2 under Section 129 (3) of the U.P. G.S.T. Act and C.G.S.T. Act, 2017/ Section 20 of the IGST Act, 2017 and tax and penalty order No.227 dated 5.9.2018 passed by respondent no.3 under Section 129 (3) of the U.P. G.S.T. Act and C.G.S.T. Act, 2017/ Section 20 of the IGST Act, 2017 and has also prayed for a direction to respondent no.3 to refund the amount of Rs.31,377/- deposited at the time of filing of appeal before respondent no.2.

It is not disputed that the impugned orders are appealable under Section 112 of the C.G.S.T. Act, 2017. The appeal is to be filed within 90 days from the date on which the order sought to be appealed is communicated to the person preferring the appeal. The instant petition has been filed bye-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date.

It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be considered to be 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 is urged that in such

circumstances, the petitioner can wait and avail the remedy of filing appeal as and when the Tribunal is constituted. It is also pointed out that since the seized goods have already been released, therefore, no prejudice is going to be caused to the petitioner at the present moment.

Learned counsel for the petitioner very fairly admits the above legal position and also the fact that the goods have already been released.

In view of the above, the instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.

(Manoj Kumar Gupta, J)

Order Date :- 8.6.2020