Case Law Details
RGS Impex Pvt. Ltd. through Jinil Atulbhai Rachchh Vs State of Gujarat & Ors. (Gujarat High Court)
In the case of RGS Impex Pvt. Ltd. vs. State of Gujarat & Ors., the petitioner challenged the rejection of their GST refund appeal on the grounds of not submitting a certified copy of the refund rejection order. RGS Impex, a cotton and yarn exporter, had filed for a refund under the Inverted Tax Structure category, claiming Rs. 1.52 crore for the period between October 2017 and March 2018. However, the authorities only approved a partial refund of Rs. 96.15 lakh, prompting RGS Impex to appeal the decision under Section 107 of the GST Rules, 2017. Due to a lack of online options to file the appeal against the refund rejection order, the company manually submitted its appeal and attended several hearings, only to have the appeal dismissed in February 2023 for failure to provide a certified copy of the initial order.
RGS Impex approached the Gujarat High Court to seek the restoration of the appeal, citing amendments made in December 2022 to GST Rules 108 and 109, which deem the submission of a certified copy unnecessary when the appealed order is available on the GST common portal. The High Court acknowledged that the statutory requirement for a certified copy was insignificant when the order could be viewed digitally by the authorities. The court referred to a similar case and concluded that the rejection of the appeal based on non-submission of the certified copy was unjustified, reinforcing the need for practical application of amended rules.
Petitioner is represented by you Advocate Apurva N Mehta.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
[1] By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 28th February 2023 passed by the Joint Commissioner of State Tax, Appeals – 1, Rajkot, wherein the appeal preferred by the petitioner under Section 107 of the Goods and Services Tax Rules, 2017 (for short, “the GST Rules”) was rejected on the ground of non-supply of certified copy and further seek direction to restore the appeal and disposal thereof in accordance with law.
[2] The brief facts of the case can be stated as under:
[2.1] The petitioner is a manufacturer and exporter of cotton and yarn and registered under the GST Act vide Registration No.24AAGCR5526B1ZQ.
[2.2] The petitioner filed online application on 24th January 2020 claiming refund of Rs.1,52,13,571/- for the period between October 2017 to March 2018 as per Section 54 of the GST Act under the Inverted Tax Structure Category. In response thereto, show cause notice dated 29th March 2020 was served upon the petitioner calling, inter alia, to explain as to why the application for refund may not be rejected on the ground of being time barred. The respondents authorities, thereafter, vide order dated 30th April 2020, partially rejected for refund sanctioning refund of Rs.96,15,838/-.
[2.3] Being aggrieved and dissatisfied with the aforesaid, the petitioner desired to file appeal as per Section 107 of the GST Rules, however, such appeal can only be filed online against the orders raising additional demand or against registration cancellation orders, thus, in the portal, no option to file appeal against the refund rejection order is provided. The petitioner therefore filed online grievance on the GSTN portal and also filed representation dated 18th September 2020 simultaneously.
[2.4] Since there was no response to online grievance as well as representation and the limitation period was getting over, the petitioner preferred first appeal manually on 30th September 2020 in the prescribed form before the respondent No.3. Pursuant thereto, the respondent No.3 fixed hearing of the aforesaid appeal on 17th February 2022 and 21st September 2022. On both the occasions, the petitioner was present, however, the appeal could not be heard due to some reasons and the petitioner was assured that the same will be heard on the next date in due course.
[2.5] On 28th February 2023, without any notice or communication, the first appeal of the petitioner came to be rejected on the ground that the petitioner has not submitted certified copy of refund rejection order dated 30th April 2020 as per Section 108(3) of the GST Rules.
[3] Being aggrieved and dissatisfied with the aforesaid, the petitioner has preferred this petition.
[4] We have heard learned advocates for the respective parties.
[5] Since the issue is small in nature and no more res intergra, with the consent of the learned advocates for the parties, the matter is taken up for hearing.
[6] Considering the submissions and the averments made in this petition, a short question that falls for consideration of this Court is whether the certified copy of the order appealed is required to be submitted in view of amended Rules 108 and 109 of the GST Rules with effect from 26th December 2022?
[7] Since the facts are not much in dispute, we may not advert the same as a short point hinges upon the fact that the petitioner while filing appeal has not submitted certified copy of the order which was uploaded on common portal. Thus, so as to decide the aforesaid question and keeping in mind the facts of the case, in our considered opinion, it would be apt to take note of Section 108 of the GST Rules as amended with effect from 26th December 2022 by the suggestions made in the 48th meeting of the GST Council which can be quoted thus as under:
“108. Appeal to the Appellate Authority.- (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification as contained in FORM GST APL- 01 shall be signed in the manner specified in rule 26.
(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgement, 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 acknowledgement shall be considered as the date of filing of appeal:
Provided that 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 APL01 and a final acknowledgement, 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 acknowledgement shall be considered as the date of filing of appeal:
Provided further that where the said selfcertified 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.”
[8] Keeping in mind the aforesaid provisions, when an order which is appealed against is issued or uploaded on the common portal and the same can be viewed by the appellate authority, requirement of submitting certified copy of such uploaded order for its authenticity would be insignificance. Thus, the appellate authority could not have rejected the appeal on such a technical ground more particularly when the statute does not provide the same.
[9] Our views are fortified by the decision of this Court in the case of Otsuka Pharmaceutical India Pvt. Ltd. vs. Union of India and others [R/Special Civil Application No.13209 of 2023 and allied petitions decided on 27th March 2024], wherein, in paras 4, 5, 5.1, 5.2 and 6, this Court has held as under:
“4. Considering the above submissions, it would be germane to refer to Rule 108 of the Rules, which reads as under.
Rule 108 – Appeal to the Appellate Authority. (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in rule 26.
(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf:
Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy.
5. On perusal of the above Rule, it is clear that the petitioner is required to submit decision or order appealed against within seven days of filing of appeal under sub-rule (1) and final acknowledgment indicating appeal number is to be issued in Form GST APL-02 by the appellate authority. Therefore, literally applying Rule 108(3) by the appellate authority was justified in rejecting the appeals on the ground of delay.
5.1 However, as the learned advocate for the petitioner has referred to and relied upon Minutes of 48th Meeting of GST Council held on 17th December, 2022, wherein in Item VII, amendment in Rules 108 and 109 is discussed, which reads as under.
VII. Amendment in Rule 108 and Rule 109
8.6.15 Principal Commissioner, GST Policy Wing further mentioned that in terms of Section 107 (1) of the CGST Act, 2017, any person aggrieved by any decision or order passed by an adjudicating authority may appeal to the concerned appellate authority within three months from the date of communication of the said decision or order to such person. Similar provision exists under sub-section (2) of Section 107 of CGST Act to provide for filing appeal by an officer authorised by the Commissioner to the appellate authority within six months from the date of communication of the said decision or order.
8.6.16 Further, as per Rule 108 (3) of the CGST Rules, in respect of an appeal filed in terms of the provisions of Section 107 (1) of CGST Act, 2017, a certified copy of the decision or order appealed against is required to be submitted within seven days of filing the appeal in FORM GST APL-01 under subrule (1) of Rule 108. The date of filing appeal in case where certified copy is submitted within seven days of filing appeal is the date of issuance of provisional acknowledgement, otherwise it is the date of submission of the certified copy.
8.6.17 Similarly, Rule 109 (2) of CGST Rules, 2017 provides for requirement of submission of certified copy of the order appealed against within seven days of filing application in FORM GST APL-03 in terms of sub-section (2) of Section 107 of CGST Act.
8.6.18 Law Committee deliberated on the issue and observed that in GST regime, when an order which is appealed against is issued or uploaded by the adjudicating authority on the common portal, the same can be viewed by the appellate authority. Accordingly, the requirement of submission by the appellant of a certified copy of such an uploaded order to vouch for its authenticity, pales into insignificance considering that the order has been uploaded by the adjudicating authority using his Digital Signature Certificate and the same is available for viewing or downloading by the appellate authority on the portal. However, in cases where the decision or order has been passed manually and has not been uploaded on the common portal, the same is not available to the Appellate Authority on the common portal. In such cases, non-submission of the certified copy by the appellant restricts the Appellate Authority from entertaining the same
8.6.19 Law Committee accordingly recommended that to provide clarity on the requirement of submission of certified copy of the order appealed against and the issuance of final acknowledgment by the appellate authority, an amendment might be made in sub-rule (3) of Rule 108 and in Rule 109 of the CGST Rules, 2017 and Form GST APL-02. The details of the same are provided in the agenda note.
The Council agreed with the recommendation of the Law Committee.”
5.2 As the GST Council has agreed to recommendations of the Law Committee which provides that when an order which is appealed against is issued or uploaded on the common portal and the same can be viewed by the appellate authority, requirement of submission by the appellant of a certified copy of such an uploaded order to vouch for its authenticity would be insignificant in view of availability of the order online. Therefore, considering such recommendation, amendment which is clarificatory in nature, has come into effect from 26th December, 2022 on the statute and reads as under.
108. Appeal to the Appellate Authority.- (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification as contained in FORM GST APL- 01 shall be signed in the manner specified in rule 26.
(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgement, 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 acknowledgement shall be considered as the date of filing of appeal:
Provided that 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 APL01 and a final acknowledgement, 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 acknowledgement shall be considered as the date of filing of appeal:
Provided further that where 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.
6. In view of the above amendment which would have a retrospective effect as the same is a clarificatory in nature and therefore, the impugned order passed by the appellate authority rejecting the appeal on the ground of delay would not survive. The impugned order is, accordingly, quashed and set aside and the matter is remanded back to the appellate authority to pass a fresh de novo order on merits after giving opportunity of hearing to the petitioner.”
We answer the question accordingly.
[10] For the foregoing reasons, the impugned order dated 28th February 2023 passed by the respondent No.3 is hereby quashed and set aside and the matter is remanded back to the appellant authority to pass a fresh de novo order on merits after giving an opportunity of hearing to the petitioner. Needless to clarify that this Court has not gone into the merits of the case and the same shall be decided by the appellant authority strictly in accordance with law and such exercise shall be completed within 12 weeks from the date of receipt of a copy of this order. This petition is accordingly disposed of.
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