Non-Filing of Certified Copies Shouldn’t Lead to Appeal Dismissal Without Merit Review: Allahabad HC

Ap Machine Tools Vs Additional Commissioner Grade-2 And Another (Allahabad High Court) 

The Allahabad High Court addressed the issue of non-filing of a certified copy in electronic appeals in the case of Ap Machine Tools vs. Additional Commissioner Grade-2. The petitioner, a partnership firm, challenged the dismissal of their appeal due to the absence of a certified copy of the order, arguing it was a technical issue. The petitioner had filed the appeal electronically within the permissible period but failed to submit the certified copy promptly. The Court noted that technical errors, such as non-filing of certified copies, should not result in dismissal without merit review. Referring to prior judgments, the Court emphasized that such procedural lapses are minor and should not preclude an appeal from being heard on its substance. It remanded the case for a reconsideration of the appeal based on its merits, instructing the appellate authority to decide the matter expeditiously. The decision reinforces that procedural mistakes should not overshadow the need for substantive justice.

FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT

1. Heard Mr. Aditya Pandey, learned counsel for the petitioner and learned Standing Counsel for State-respondents.

2. By means of present petition, the petitioner is praying, inter alia, for the following reliefs:-

“(I) Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned order dated 31.5.2023 passed by the respondent no. 1 in Appeal No. AD091122016531M/2022, Year 2022-23 under the provisions of Section 129 (3) of the Goods and Services Tax Act, 2017(Annexure No. 1 to the writ petition).

(II) Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned detention order dated 10.9.2022 (MOV-06) as well as the consequential penalty order dated 10.9.2022 (MOV-09) (Annexure -3 and 4 to the writ petition).

(III) Issue a suitable writ, order or direction in the nature of mandamus directing the respondents to refund the amount deposited by the petitioner.”

3. Brief facts as stated in the writ petition is that the petitioner is a partnership firm having GSTIN No. 07AABFA0259Q1 and engaged in the business of Machine and Tools of different kinds. In the normal course of business, the petitioner has received order of supply from M/s Tiwari Shiv Shakti Enterprises, Nepal towards which the goods were loaded in Vehicle No. DL1LV-6205 along with relevant documents as tax invoices, E-way bill etc., however during transportation of the said goods, the vehicle in question was intercepted by respondent no. 2 on 10.9.2022 and thereafter physical verification was made and the goods were detained only on the ground that invoice date is different in EWB No. 701282717234 DT 07SEP 2022. Thereafter notice was issued in GST MOV -7 and penalty order was passed on 10.9.2022. The petitioner preferred an appeal against the said order before respondent no. 1, which was dismissed only on the ground of non-filing of certified copy of the order. Hence the present petition.

4. Learned counsel for the petitioner submits that against the order dated 10.9.2022 passed under Section 129 (3) of GST Act, an appeal was preferred by the petitioner through electronic mode and same was uploaded on 12.11.2022, which was well within the limitation but the same has been dismissed only on the ground that certified copy of the order dated 10.9.2022 has not been filed along with the appeal.

5. Learned counsel for the petitioner further submits that the issue with regard to filing of certified copy of the order as per Rule 108 of GST Rules, has already been decided by this Court in Writ C No. 1155 of 2023 (M/s Enkay Polymers Vs. State of UP, Neutral Citation No. 2024:AHC:88999 and Writ C No. 1417 of 2022 (M/s Jai Prakash Shiv Charan Bidi through its Proprietor Shri Jai Prakash Sahu Vs. Commissioner, Commercial Tax and another), Neutral Citation No. 2024: AHC:59879, in which this Court has held that merely on the ground of non-filing of certified copy of the decision within the time frame, the authority should not dismiss the appeal on technical grounds.

6. He further submits that now an amendment in Rule 108 (3) has been made wherein filing of certified copy of the decision along with the appeal has been dispensed with. He submits that once the law is settled in this respect, the appellate authority should not dismiss the appeal on technical ground without going through the merits of the case.

7. Per contra, learned Standing Counsel has justified the impugned order and refers para 6 and 14 of the counter affidavit.

8. After hearing learned counsel for the parties, the Court has perused the records.

9. Vide order dated 19.7.2024, this Court has passed the following order :-

‘Heard Mr. Aditya Pandey for the petitioner and learned Additional Chief Standing Counsel for the respondents.

Learned counsel for the petitioner submits that an online appeal has been filed under Section 107 read with Rule 108. He submits that the amendment has been made under Rule 108 with effect from 26.12.2022 whereby filing of certified copy has to be uploaded. He further submits that his appeal has been dismissed on the ground of non filing of certified copy of the order.

In support of his argument, he relied upon the judgement of this Court in Writ Tax no. 1417 of 2022 decided on 5.4.2024 whereby Court has observed that merely non filing of the certified copy cannot be a ground for dismissal of appeal. Similar view has been taken by this Court in Writ Tax No. 1155 of 2023 decided on 16.5.2024.

He further submits that the law is very clear on this point but the petitioner is being unnecessarily harassed.

On the pointed query put to learned Standing Counsel as to how if the law is clear, the impugned order has been passed, he prays some time to file counter affidavit.

Three weeks’ time is allowed to learned Standing Counsel for filing of counter affidavit.”

10. In compliance of the said order, counter affidavit has been filed by the State and learned Standing Counsel has referred para 6 and 14 of the counter affidavit but on perusal of the same, it shows that not a single word has been whispered in respect of the query made by this Court vide order dated 19.7.2024.

11. It is not in dispute that the appeal was filed well within the limitation on 12.11.2022 through electronic mode and thereafter certified copy of the decision has been filed. However without considering the merits of the case, the appeal has been dismissed on the ground of delay.

12. This Court on various occasions has held that merely non filing of certified copy of the impugned order within time in the appeal filed through electronic mode is a technical error and on this technical ground, the appeal cannot be dismissed.

13. This Court in the cases of M/s Enkay Polymers (supra) and Jai Prakash Shiv Charan Bidi(supra) have held that non filing of certified copy within the time in the appeal filed through electronic mode, is only a technical error and on this ground the appeal may not be dismissed on delay.

14. In view of above, the writ petition is partly allowed. The impugned order dated 31.5.2023 passed by the appellate authority is set aside. The matter is remanded to the appellate authority who shall decide the appeal on its own merit by reasoned and speaking order, expeditiously, preferably within a period of three months from the date of production of certified copy of this order.