2025(04)LCX0426
Appolo Sesame Industries
Versus
Assistant Commissioner Of CGST
R/SPECIAL CIVIL APPLICATION NO. 571 of 2025 decided on 24-04-2025
2025:GUJHC:24225-DB
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 571 of 2025
M/S APPOLO SESAME INDUSTRIES & ANR.
Versus
ASSISTANT COMMISSIONER OF CGST, DIVISION X, NADIAD & ORS.
Appearance:
KRUTARTH K DESAI(9662) for the Petitioner(s) No. 1,2
MR ABHAY Y DESAI(12861) for the Petitioner(s) No. 1,2
DEEPAK N KHANCHANDANI(7781) for the Respondent(s) No. 1
CORAM:HONOURABLE MR. JUSTICE
BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 24/04/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Abhay Y. Desai for the petitioner and learned advocate Mr. Deepak N. Khanchandani and Mr. Ankit Shah for the respondents.
2. By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:
“11A. That Your Lordships may be pleased to issue a certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the impugned Order in Original dated 30.10.2023 passed by the present Respondent No 01 (ANNEXURE C);
B. That Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the impugned Order in Original dated 27.09.2024 passed by the present Respondent No 02 (ANNEXURE E);
C. That Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the letter dated 04.12.2024 issued by the present Respondent No 03 (ANNEXURE F);
D. Pending notice, admission and final hearing of this petition, Your Lordships may be pleased to stay further proceedings pursuant to the order dated 30.10.2023 passed by the present Respondent No 01 (ANNEXURE C);
E. Ex parte ad interim relief in terms of prayer ‘D’ may kindly be granted;
F. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray.”
3. At the outset, learned advocate Mr. Abhay Y. Desai for the petitioners, under the instructions, does not press prayers A and C and has made submissions qua prayer B with respect to quash and set aside the order-in-original dated 27.09.2024 passed by respondent No.2.
4. The brief facts of the case are that being aggrieved by the order-in-original dated 30.10.2023 passed by respondent No.1, the petitioners preferred an appeal by filing FORM GST APL-01 manually along with a letter, contending that the order-inoriginal passed by the Assistant Commissioner, CGST & Central Excise, Division-X, Nadiad, Vadodara-I was not available on GST portal with FORM GST DRC 07 but the same was served and physically received on 02.11.2023 and as such, the petitioners were not able to file the appeal electronically and the appeal was filed manually after payment of pre-deposit of Rs.57,87,800/- being 10% of the disputed dues as per section 107(6) of the GST Act.
4.1 Respondent No.2 - Appellate Authority, however, by the impugned order dated 27.09.2024, rejected the appeal on the ground that the petitioners did not file the appeal electronically as provided under Rule 108 of the Central Goods and Service Tax Rules, 2017 (for short ‘GST Rules’) . Rule 108(1) of the GST Rules provides as under:
“108(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 acknowledgment shall be issued to the appellant immediately.
Provided that an appeal to be Appellate Authority may be filed manually in FORM GST APL-01, alongwith the relevant documents, only if –
(i) the commissioner has so notified, or
(ii) the same cannot be filed electronically due to non-availability of the decision or order to eb appealed against on the common portal, and in such case, a provisional acknowledgment shall be issued to appellant immediately.”
4.2 It appears that the Appellate Authority, without considering the provisions of Rule 108(1) of the GST Rules, rejected the appeal ignoring the fact that the petitioners could not have preferred an appeal as the order-in-original was not available on the GST portal and the Appellate Authority was empowered to accept the appeal manually as the petitioners could not file the appeal electronically due to non-availability of the order-in-original. Except acknowledging the receipt of the letter on 17.01.2024, even the Appellate Authority did not issue the provisional acknowledgment as stipulated in clause (2) (ii) of the proviso to Rule 108(1) of the GST Rules.
4.3 Thus, the Appellate Authority has failed to comply with the provisions of Rule 108(1) of the GST Rules and ignoring the fact that the order-in-original was not available on GST portal so as to enable the petitioner to file the appeal electronically, the Appellate Authority ought to have considered the appeal filed by the petitioner manually and could not have rejected the same on technical ground, that the appeal was not filed electronically. In fact, the petitioner has followed the procedure prescribed under the GST Rules by filing an appeal manually due to non-availability of order-in-original on GST portal. The Appellate Authority has not even bothered to look into GST portal as to whether the order-in-original was uploaded and in spite of the order being available on GST portal, the petitioners did not file the appeal electronically. The Appellate Authority, without arriving at such attitude, mechanically and without application of mind, has observed as under after quoting Rule 108 of the GST Rules:
“6.2 In the case in hand, the impugned order was issued on 30.10.2023 and claimed by the appellant to have been communicated to them on 02.11.2023 itself. Considering this date of 02.11.2023, the appellant was required to be filed electronically, within 3 months, i.e. on or before 02.02.2024 in terms of provisions of Section 107(1) ibid. A hard copy of the appeal in FORM GST APL-01 shall be submitted in triplicate to the Appellate Authority and shall be accompanied by a certified copy of the decision or order appealed against along with the supporting documents within seven days of filing of the appeal under sub-rule (1) and a final acknowledgment, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorized by him in this behalf: Provided that where the hard copy of the appeal and documents are 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 issue of provisional acknowledgment and relevant copy of the appeal and documents are submitted after seven days, the appeal shall be the date of submission of documents. However, the appellant has filed the present appeal on 17.01.2024 in offline mode only.
6.3 The offline filing of appeal can be allowed only in certain conditions as laid down in the provision contained in Rule 108(1) of CGST Act, 2017. Hence the present appeal made by the appellant is liable to be rejected as the appellant has not followed the procedure prescribed in CGST Act/Rules,2017.
7. Since the appeal is liable to eb rejected, there is no need to examine other aspects of the matter. Therefore, no opinion is expressed on the maintainability of the appeal in accordance with the extant laws or the facts of the case.
:Order:
8. In view of the above, the Appeal No. APL-01/332/23-24 filed by the appellant is rejected.”
5. From the above observations of the findings of the Appellate Authority, we are of the view that there is total non-application of mind to the facts of the case that the appeal was filed manually due to non-availability of the order-in-original on GST portal. The impugned order-in-original dated 30.10.2023 passed by respondent No.1 is therefore set aside only on this ground and the matter is remanded to the Appellate Authority to consider the appeal filed by the petitioners on merit within a period of 12 weeks from the date of receipt of this order. The petition is accordingly disposed of. No order as to costs. Notice is discharged.
(BHARGAV D. KARIA, J)
(D.N.RAY,J)