According to the Law, any person aggrieved by an order passed by an adjudication authority can file an
appeal before an appellate authority. An adjudication order issued under section 73 or 74 of the CGST Act,
can be appealed before an appellate authority. Similarly, an order passed by Commissioner appeals can
be appealed before Appellate Tribunal in terms of section 112 of the CGST Act, within three months from the date on which the order sought to be appealed against is communicated to the person preferring the
appeal. Considering the non-constitution of Appellate Tribunal in Several States, CBIC had issued order no. 09/2019-Central Tax for removal of difficulties. In that, they clarified that the time limit to file an appeal before said Tribunal shall be calculated to be later of date of communication of the order to the aggrieved party or the date by which the President or State President of the Tribunal after its constitution, enters the office.
Now the question is whether recovery proceedings can be done for the adjudicated order.
A similar case came before the Honorable High Court of Patna, where the DC Special Circle issued a notice to the taxpayer for wrongly claimed ITC under Form GST TRAN-1 and it was followed by a SCN, adjudication, and appeal before commissioner appeals. High Court observed that because the petitioner is not deprived of its right of appealing before the Appellate Tribunal and due to its non-constitution petitioner could not do it, therefore, no recovery proceedings shall be initiated. Further, CBIC also vide its order no. 09/2019 clarified the last date for filing an appeal before Appellate Tribunal.
SW Point of View:
Section 112(8) provides to pre-deposit money before filing the appeal and section 112(9) provides a remedy by putting a stay on recovery proceedings. Therefore, the non-constitution of the Appellate Tribunal cannot deprive the taxpayers of remedies available under these sections. In our view, taxpayers must pe-deposit money in terms of section 112(8) within its original time limits, irrespective of the constitution of the Appellate Tribunal or not. This will allow them of having a strong case to argue!
Source: Order No. 09/2019-Central Tax High Court of Patna
Writ Petition No.2454 of 2023, dated February 15, 2023.
