Seizure of goods-Limitation for appeal under UPGST runs not from service of order on truck driver but owner– HC

Seizure of goods under UPGST-Limitation period for appeal  starts not from the date of service of order on truck driver but the owner– High Court

ABCAUS Case Law Citation:
ABCAUS 2669 (2018) (12) HC

A writ petition was filed in the Hon’ble High Court on the following interesting question of law:

Whether the petitioner would have a surviving right of appeal beyond a period of 30 days from the date of the penalty order or 30 days from the date of service of that order on the driver of the truck who was found to be transporting the goods belonging to the petitioner assessee. 

In the instant case, the petitioner was the owner of the goods. He had purchased certain goods by a Tax Invoice. These goods had been consigned by the driver of the truck. The said goods were subjected to seizure proceedings under Section 107 of UP Goods and Services Tax Act, 2017 (the Act).

Before the Hon’ble High Court, the petitioner claimed that the penalty order that was passed in consequence of such seizure proceedings was never served on him by the Assessing Authority.

The Petitioner claimed that that the order was first communicated to him after the gap of nearly two weeks from the date of seizure and having thus on getting the knowledge of the order, he filed appeal under Section 107(1) of the Act within the period of three months there from. 

However, the said appeal was dismissed as time barred by the impugned order by treating the period of limitation to have been commenced from the date of the seizure order.

The petitioner submitted that in the first place the statutory forum of second appeal against the impugned order did not exist inasmuch as the Tribunal had yet not been constituted under the Act, a position that was admitted to the State.

The Hon’ble High Court observed that the language of Section 107(1) of the Act provides for a period of limitation of three months from the date of communication of the order. Then Section 107(4) of the Act limits the period for which delay may be condoned in filing of such appeal to a period of one month and no more. 

The Hon’ble High Court opined that keeping in mind the fact that the delay in filing the appeal may not be condoned beyond the period of one month from the expiry of period of limitation, the phrase “communicated to such person“appearing in Section 107(1) of the Act commend a construction that would imply that the order be necessarily brought to the knowledge of the person who is likely to be aggrieved.

The Hon’ble High Court said that unless such construction is offered, the right of appeal would itself be lost though a delay of more than a month would in all such cases be such as may itself not warrant such strict construction. 

The Hon’ble High Court observed that in the present case it was largely undisputed that the impugned penalty order was served on the driver of the truck while the penalty order was directed against the owner of the goods. Therefore, for that reason also it might be accepted that the penalty order had not been communicated to the petitioner prior to the date as claimed by him. 

Accordingly, the Hon’ble High Court set aside the impugned order and directed the Appellate Authority to condone the delay and decide the appeal expeditiously.

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