Appeal cannot be rejected due to technical defect

The Hon’ble Madras High Court in Indian Potash Ltd. v. Deputy Commissioner (ST) GST Appeal, Chennai [Writ Petition No. 12101, 12103 and 12105 of 2024 dated June 03, 2024], held that non-production of hard copy of order is only technical defect and the appeal is required to be processed provided the appeal was filed within time.

Facts:

M/s Indian Potash Ltd. and others who are party to the writ (“the Petitioners”) had claimed for refund of IGST on ocean freight. However, the Petitioners were issued refund rejection Orders dated March 19, 2021 (“the Impugned Orders”) by the Deputy Commissioner (ST) GST (“the Respondent”).

Consequently, the Deputy Commissioner filed all three appeals on dated June 18, 2021 before the Appellate Authority to claim the refund of IGST on ocean freight, but failed to submit the hard copy of the Impugned Order within 7 days of presentation of the appeal as per the Rule 108(3) of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”). However, the requirement was complied with until February 02, 2024.

Hence, aggrieved by the impugned order, the Petitioner filed the present writ petition.

Issue:

Whether the Revenue Department can reject the refund application on mere procedural lapse?

Held:

The Hon’ble Madras High Court in W.P. No. 12101, 12103 and 12105  of 2024 held as under:

• Relied on, the judgement of the Hon’ble Madras High Court in the case of PKV Agencies v. Appellate Deputy Commissioner (GST)(Appeals)[73 GSTL 71 (Mad.)] which further relied on the Orissa High Court judgment of Atlas Pvc Pipes v. State of Odissa [65 GSTL 45 (Ori.)] wherein it was held that the non-production of the hard copy of the impugned order is only a technical defect and that the appeal is required to be processed provided the appeal was filed within time.
• Noted that, in the cases at hand, the Impugned Orders were issued on March 19, 2021 and the appeals were lodged on June 18, 2021. As such, the appeals were filed within time limit prescribed by statute. In those circumstances, the ratio of PKV Agencies is applicable.
• Held that, the writ petitions were disposed of by directing the Respondent to process the respective appeals by not rejecting the same on the ground that the physical copy of the Impugned Orders were filed on February 02, 2024 and was directed to number the appeals within one month from the date of receipt of a copy of this order.

Our Comments:

Rule 108 of the CGST Rules governs “Appeal to the Appellate Authority”. Further, Rule 108(3) of the CGST Rules was substituted vide Notification No. 26/2022-Central Tax dated December 26, 2022. The said sub-section states that where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal.

However, where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgment, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal:

If the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-01, the date of submission of such copy shall be considered as the date of filing of appeal.

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