A division bench of the Orissa High Court has held that the GST appellate authority cannot dismiss an appeal merely on the technical ground that the certified order is not submitted along with the appeal memo.
The Petitioner, M/s. Atlas PVC Pipes Limited, a Company incorporated under the provisions of the Companies Act, 1956, deals in supply of pipes have participated in the proceeding under Section 74 of the OGST Act. After the passing of order, the petitioner approached the first appellate authority wherein the authority dismissed the appeal on ground of non-submission of certified order alongwith the appeal memo.
Before the High Court, the petitioner contended that in addition to filing of the appeal by electronic mode, self-attested hardcopies of the documents including copy of the impugned order as made available to it in the GST web portal were furnished to the Appellate Authority-Opposite Party No.2.
After analysing the relevant provisions of Section 107, Justice Krushna Ram Mohapatra and Justice Murahari Sri Raman observed that “the appeal is required to be filed within stipulated period as envisaged under sub-section (1) and the filing of such appeal is hedged with conditions inter alia that besides admitted tax, interest, fine, fee and penalty, a sum equal to ten per cent of the remaining amount of tax in dispute arising from order challenged in appeal is required to be deposited. As is required under sub-section (5) ibid. read with the definition of the term “prescribed” in Section 2(87), the appeal is to be filed in the form along with verification in the manner prescribed. It is understood by having a glance at notice dated 13.05.2022 that but for the defect in terms of sub-rule (3) of Rule 108, there is no deficiency in filing the appeal as required under Section 107.”
Relying on precedents, the Court held that the petitioner is entitled to the benefit of exclusion of limitation of 7 days as stipulated in Rule 108(3) of the OGST Rules inasmuch as the certified copy of the Order dated 20.01.2021 being obtained on 21.05.2022 and offered to the Appellate Authority on 23.05.2022 for consideration in connection with the defect pointed out vide notice dated 13.05.2022, the same fell well within the 90 days period granted by the Supreme Court in the Order dated 10.01.2022.
“The requirement to furnish certified copy of the impugned order within seven days of filing of appeal is provided as a procedural requirement,” the Court said.
Mr. Sudeepta Kumar Singh, Advocate appeared for the assessee.
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