No rejection of GST appeal for mere non filing of certified copy of the decision as per rule 108 of CGST Act 2017 when appeal has been filed electronically
Ina recent judgment, Hon’ble Allahabad High Court has held that mere non filing of certified copy of the decision as per rule 108 of CGST Act 2017 would not result in dismissal of appeal filed electronically
ABCAUS Case Law Citation:
ABCAUS 4017 (2024) (05) HC
Important Case Laws relied upon:
Atlas PVC Pipes Ltd. vs. State of Odisha reported in 2022 (65) G.S.T.L.
PKV Agencies vs. Appellate Dy. Commissioner (GST) (Appeals) 2023 (73) G.S.T.L. 71
In the instant case, a writ petition was filed by the petitioner challenging the order passed by the Additional Commissioner UPGST rejecting the appeal filed by the petitioner on the ground that the same were time barred, as the self-certified copy of the decision or order was not made available within time as per proviso to Rule 108 of the Central Goods and Services Tax Rules, 2017 (the Rules).
Referring to the said Rule 108 the Petitioner argued that when the appeal is filed electronically and uploaded on the common portal in FORM GST APL-01, there is no requirement to file self-certified copy of the decision. Both the proviso to Rule 108 of the Rules apply only in the case when the appeal is not uploaded on common portal.
The Hon’ble High Court observed that various High Courts have held that when an assessee files a memo of appeal in the GST Portal, non submission of certified copy would be treated as mere technical defect and the appeal should not be dismissed on the sole ground of non submission of certified copy within time.
It was noted that the Orissa High Court has held that furnishing certified copay is a procedural requirement, merit of the matter in appeal should not be sacrificed for such default. When the petitioner had enclosed the copy of impugned order as made available to it in the GST portal while filing Memo of Appeal, non-submission of certified copy, is to be treated as mere technical defect.
Further, the Madras High Court also considered the decision given by the Orissa High Court and observed that the Orissa High Court had held that since Rule 108(3) has not prescribed for condonation of delay in the event where the petitioner fails to submit the certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act, 1963, in the context of supply of certified copy within the period stipulated in sub-rule (3) of Rule 108, the requirement to furnish certified copy of the impugned order within seven days of filing of appeal is only a procedural requirement, which can be condoned by exercising powers under Article 226 of the Constitution of India as it is only a technical defect.
In view of the above, the Hon’ble High Court and upon examination of Section 107 of the Central Goods and Services Tax Act, 2017 read with Rule 108 of the Central Goods and Service Tax Rules, 2017, opined that mere non filing of the certified copy of the decision within a period of seven days, when the appeal has been filed electronically within the time frame prescribed, that is, three months, the authority should not dismiss the appeal on the ground that the certified copy of the decision was not filed within time
Accordingly, the impugned order was quashed and set aside with a direction upon the appellate authority to de novo hear the appeals filed by the petitioner and pass a reasoned order on merits within a period of three months.
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