LANDMARK DECISION REGARDING FILLING OF APPEAL

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LANDMARK DECISION REGARDING FILLING OF APPEAL

22/02/2021

HIGH COURT OF GUJARAT

GUJARAT STATE PETRONET LIMITED V/S UNION OF INDIA THROUGH SECRETARY

HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Brief facts of the case are that the petitioner is an undertaking of Government of Gujarat incorporated under the provisions of the Companies Act, 1956 and is engaged in the transportation of gas through pipeline. The petitioner is registered under the provisions of the Central Goods and Service Tax Act, 2017 (“CGST Act” for short).

The petitioner had filed a refund application on 21st March, 2018 for claiming the refund of Integrated Goods and Service Tax (for short “IGST”) amounting to Rs. 2,66,55,266/ paid on supplies made to the Special Economic Zone (for short “SEZ”).

The respondent no.4 adjudicating authority examined the refund application and issued a deficiency memo dated 11th April, 2018 directing the petitioner to cure the defects and submit the endorsed invoices in respect of the supplies made to one ONGC Petro Additions Limited (for short “OPAL”). It is the case of the petitioner that despite continuous reminders by the petitioner and the OPAL for endorsement of the invoices, the SEZ jurisdictional authority was neither endorsing the invoices for IGST amounting to Rs.41,59,625/ nor confirming any time frame. The petitioner therefore, vide letter dated 18th June, 2018 requested the adjudicating authority to process the remaining refund.

The respondent no.4 issued a show cause notice dated 5th July, 2018 for rejection of the refund amount to the tune of Rs. 41,59,625/ since copy of invoices in respect of the supplies made to the OPAL were not submitted.

The petitioner replied to the said show cause notice by its letter dated 6th July, 2018 stating that the amount of refund as stated in the notice was pertaining to the supply made to the OPAL for which invoices have not been endorsed by the SEZ authority despite several reminders.

Pursuant to the refund application, the adjudicating authority sanctioned refund to the tune of Rs.2,24,95,641/ on 2nd August, 2019 however, refund amount to the tune of Rs.41,59,625/ was held to be inadmissible because of the non submission of the endorsed invoices for the supplies made to OPAL.

On 2nd August, 2018, the petitioner received the endorsed copies of the invoices and thereafter, the petitioner immediately approached the adjudicating authority for taking on record the endorsed copy of invoices. However, the adjudicating authority did not take the documents into consideration on the ground that the refund order has already been signed and hence, no amendment can be made in the same.

The petitioner thereafter at various occasions approached the adjudicating authority for uploading the order on GST portal, however, the adjudicating authority was unable to do so due to certain technical issues.

It is the case of the petitioner that the adjudicating authority advised the petitioner to file a fresh refund application and generate fresh application reference number, however, the petitioner could not do so as the GST portal does not allow filing of refund application for same month twice when the reason for refund is same and particularly, when the first refund application is not closed. It is the case of the petitioner that on advice of the adjudicating authority, the petitioner even approached the GST Seva Kendra, Ahmedabad for filing fresh application in relation to refund of IGST paid on the supplies made to the OPAL. The petitioner also approached the GST Seva Kendra at New Delhi with the same issue; however the issue of petitioner was never resolved. The petitioner even lodged the grievance on the GST portal on 6th August, 2018 and on 16th August, 2018, however, the grievances remained unresolved.

The petitioner thereafter, submitted a letter dated 15th November, 2018 along with requisite documents and requested for refund of Rs.41,59,625/.

The adjudicating authority replied to the above letter by its letter dated 29th November, 2018 stating that the refund application has already been processed and accordingly, the refund was sanctioned to the tune of Rs. 2,24,95,641/.

The petitioner however, without receiving the electronic order filed a manual copy of the appeal on 27th February, 2019 before the respondent no.3 against the refund order dated 2nd August, 2018. Subsequently, the petitioner was invited for the personal hearing on 28th March, 2019 and was asked to submit the copy of grievance that was lodged earlier in relation to the subject matter of the appeal. The petitioner accordingly vide letter dated 29th March, 2019 submitted the details of grievances lodged.

The respondent no.3 passed the order on 1st May, 2019 rejecting the appeal filed by the petitioner on the ground of the appeal being time barred.

Being aggrieved by the impugned order and the conduct of the respondent authorities, the petitioner has preferred the present petition.

After discussion , it is apparent that the appeal is required to be filed in electronic mode only and if any other mode is to be prescribed then the same is required to be notified by way of a notification. There is nothing on record to show that any notification has been issued for manual filing of an appeal. In such circumstances, though the physical copy of the adjudication order was handed over to the petitioner, the time period to file appeal would start only when the order is uploaded on the GST portal. Without the order being uploaded, the petitioner could not file the appeal and therefore, the contention raised on behalf of the respondents that the uploading of the order and filing of the appeal are two different processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure to file the appeal manually. In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. Merely because the petitioner has filed the appeal manually after exhausting all the efforts to ensure filing of the appeal in proper and legal manner, the impugned order rejecting such appeal on the ground of limitation is not sustainable as the petitioner cannot be penalised for lack of clarity of the provision when the new law is enacted. From the facts on record, it also emerges that the petitioner has taken all the steps for proper filing of the appeal immediately after issuance of the order passed by the adjudicating authority till the filing of the appeal. Therefore, the appellate authority was not justified in rejecting the appeal on the ground of limitation and thereby depriving the petitioner to submit its case on merits.

In view of above, taking into consideration the peculiar facts of the case, the impugned order passed by the appellate authority is required to be quashed and set aside by condoning the delay in filing of the appeal manually by the petitioner in absence of availability of the order passed by the adjudicating authority on the GST portal.

For the foregoing reasons, the petition succeeds and is accordingly allowed. Impugned order dated 1st May, 2019 passed by respondent no.3 the Commissioner (Appeals) of Goods and Service Tax, Ahmedabad is hereby quashed and set aside and the delay in preferring the appeal manually is ordered to be condoned and the matter is remanded back to the respondent no.3 appellate authority to decide the same afresh de novo on merits after giving adequate opportunity of hearing to the petitioner.

Rule is made absolute to the aforesaid extent. No order as to costs.

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