GST update No 239 on dismissal of appeal for non-submission of certified order

It is well settled that “Justice delayed is Justice denied” so the revenue authorities should take appropriate course of action within reasonable time if there are any procedural infractions of law. It is frequently observed that the assessees are made to suffer and forgo the substantial benefit due to technical lapses which are being pointed out by the department after considerable period of time and if such lacunae is related to filing of appeal which is a time bound affair, the assessee is being deprived of its right to defend his case. Similar issue was reported before Orissa High Court in the case of M/S ATLAS PVC PIPES LIMITED V/S STATE OF ODISHA & OTHERS wherein the question raised was regarding the admissibility of appeal if the certified copy of order was not submitted. The present update seeks to give a detailed analysis of the decision imparted.

The petitioner is engaged in supply of pipes and proceedings have been initiated under Section 74 of OGST Act, 2017. An appeal was therefore filed by them wherein although the requirement of mandatory pre-deposit was complied with, but certified copy of order along with appeal memo was not submitted. The counsel for the petitioner submitted that the notice dated 13.05.2022 regarding furnishing the certified copy of order was served to the petitioner on 20.05.2022 and the requirement of furnishing certified copy of impugned order was to be fulfilled by 21.05.2022. Since the office was closed on 22.05.2022 being Sunday, the copy was furnished as on 23.05.2022 which was not accepted subsequently by the revenue department on the grounds that order rejecting the appeal was already passed and uploaded on the GST portal. Therefore, this made the appellant remedy-less. Reliance was placed on the decision of this Court in the case of SHREE JAGANNATH TRADERS V/S COMMISSIONER OF STATE TAX, ODISHA. It was further argued that liberal approach should have been followed by the appellate authority taking into consideration the ongoing Covid-19 pandemic. Further, it was submitted that the appellate authority should have verified the date of service of notice being 13.05.2022 before passing order dated 23.05.2022 rejecting the appeal memo. Moreover, it is not clear from the material on record as to whether the authority had informed the appellant about the next date of proceedings or not. It was also submitted that in the present scenario, the appellant should get benefit of suo-moto extension of period of limitation.

The Counsel of respondent argued that since the petitioner took step to obtain certified copy of order as on 21.05.2022 only being the last day of submission in accordance with provisions of Section 108 of OGST Act, 2017, the departmental authority has committed no irregularity and adhered to the principles of natural justice.

The Court observed that the present appeal is filed within the time limit prescribed for filing appeal after taking into account the extended limitation period ordered by the Apex Court. Further, it was held that in accordance with Rule 108 of CGST Rules, 2017, there is no provision of restricting application of Section 5 of Limitation Act, 1963 to the present case. It was held that non-submission of certified copy of order is merely a procedural requirement and therefore, it should be treated merely as a technical defect. It was stated that the appellate authority erred in discharging its responsibility appropriately by dismissing the appeal on the above-mentioned grounds. Therefore, the impugned order was set aside and it was directed to petitioner to appear before adjudicating authority and furnish the copy of certified order.

The above decision is yet another example wherein it was held that the substantial benefit is not to be denied to the assessee merely because of procedural lapses. It is worth mentioning here that the subject matter under discussion had its roots in the erstwhile GST regime as well. To illustrate, in the case of SHREE JAGANNATH TRADERS V/S COMMISSIONER OF STATE TAX ODISHA, the same Court held that appeal cannot be dismissed for want of certified copy of order. Although, the justice-oriented approach of the Court is quite commendable, yet, the subordinate authorities should follow these Judicial Rulings to save the precious time and cost incurred by the appellants to put an end to unwanted litigations.

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GST update No 239 on dismissal of appeal for non-submission of certified order

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