Jose Joseph v. Assistant Commissioner of Central Tax and Central Excise, Alappuzha Division; Additional Commissioner (Appeals), Office of the Commissioner (Appeals), Central Revenue Building, I.S. Press Road, Kochi; Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/ 26TH AGRAHAYANA, 1943** **==> picture [161 x 11] intentionally omitted <==** ## **PETITIONER:** **JOSE JOSEPH, AGED 54 YEARS PROPRIETOR, M/S.RUBBER TECH, S.N. PURAM, CHERTHALA- 688 582** **BY ADVS. SRI.A.KRISHNAN SHRI.R.UMASANKAR** ## **RESPONDENTS:** **1 ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE ALAPPUZHA DIVISION, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE B.S.N.L. BHAVAN, EXCHANGE ROAD, ALAPPUZHA 688 001. 2 ADDITIONAL COMMISSIONER (APPEALS) OFFICE OF THE COMMISSIONER (APPEALS), CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KOCHI 682 016 3 THE UNION OF INDIA REP.BY SECRETARY TO FINANCE, FINANCE DEPARTMENT, NEW DELHI 110 001. BY ADV KAVERY S THAMPI, SC** ## **SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WP(C).8966/2021, 8977/2021 & 9052/2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.8960/21 & Conn. Cases ## **-:2:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/26TH AGRAHAYANA, 1943** ## **WP(C) NO. 8966 OF 2021** ## **PETITIONER:** **JOSE JOSEPH AGED 54 YEARS** **PROPRIETOR, M/S.RUBBER TECH, S.N.PURAM, CHERTHALA-688582.** **BY ADVS. SRI.A.KRISHNAN SHRI.R.UMASANKAR** ## **RESPONDENTS:** **1 ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE ALAPPUZHA DIVISION, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, B.S.N.L BHAVAN, EXCHANGE ROAD, ALAPPUZHA-688001.** **2 ADDITIONAL COMMISSIONER OF (APPEALS) OFFICE OF THE COMMISSIONER (APPEALS), CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KOCHI-682016.** **3 THE UNION OF INDIA, REPRESENTED BY SECRETARY TO FINANCE, FINANCE DEPARTMENT, NEW DELHI-110001.** **BY ADVS.** W.P.(C) No.8960/21 & Conn. Cases ## **-:3:-** **SMT.KAVERY S THAMPI, SC SMT.SREEKALA K.L., CGC R.PREMSANKAR, CGC SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021 ALONG WITH WP(C).8960/2021 AND CONNECTED CASES, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.8960/21 & Conn. Cases ## **-:4:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** # **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/ 26TH AGRAHAYANA, 1943** ## **WP(C) NO. 8977 OF 2021** ## **PETITIONER:** **JOSE JOSEPH, AGED 54 YEARS PROPRIETOR, M/S RUBBER TECH, S.N. PURAM, CHERTHALA 688 582. BY ADVS. SRI.A.KRISHNAN SHRI.R.UMASANKAR** ## **RESPONDENTS:** |**1**|**ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL**| |---|---| ||**EXCISE**| ||**ALAPPUZHA DIVISION,**| ||**OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL**| ||**TAX AND CENTRAL EXCISE**| ||**B.S.N.L. BHAVAN, EXCHANGE ROAD,**| ||**ALAPPUZHA 688 001.**| |**2**|**ADDITIONAL COMMISSIONER,(APPEALS),**| ||**OFFICE OF THE COMMISSIONER (APPEALS),**| ||**CENTRAL REVENUE BUILDING,**| ||**I.S. PRESS ROAD, KOCHI 682 016.**| |**3**|**THE UNION OF INDIA**| ||**REPRESENTED BY SECRETARY TO FINANCE,**| ||**FINANCE DEPARTMENT, NEW DELHI 110 001.**| ||**BY ADVS.**| ||**SMT.KAVERY S THAMPI, SC**| W.P.(C) No.8960/21 & Conn. Cases ## **-:5:-** ## **SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WP(C).8960/2021 AND CONNECTED CASES, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.8960/21 & Conn. Cases ## **-:6:-** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** # **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/26TH AGRAHAYANA, 1943** ## **WP(C) NO. 9052 OF 2021** ## **PETITIONER:** **JOSE JOSEPH AGED 54 YEARS PROPRIETOR, M/S. RUBBER TECH, S.N PURAM, CHERTHALA 688 582** **BY ADVS. SRI.A.KRISHNAN SHRI.R.UMASANKAR** ## **RESPONDENTS:** **1 ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE ALAPPUZHA DIVISION, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE B.S.N.L BHAVAN, EXCHANGE ROAD, ALAPPUZHA 688 001 2 ADDITIONAL COMMISSIONER,(APPEALS), OFFICE OF THE COMMISSIONER (APPEALS) CENTRAL REVENUE BUILDING, I.S PRESS ROAD, KOCHI 682 016 3 THE UNION OF INDIA, REPRESENTED BY SECRETARY TO FINANCE, FINANCE DEPARTMENT, NEW DELHI 110 001 BY ADV KAVERY S THAMPI, SC** W.P.(C) No.8960/21 & Conn. Cases ## **-:7:-** ## **SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WP(C).8960/2021 AND CONNECTED CASES, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.8960/21 & Conn. Cases ## **-:8:-** ## **BECHU KURIAN THOMAS, J. -------------------------------------------W.P.(C) Nos.8960, 8966, 8977 & 9052 of 2021** ## **--------------------------------------------** Dated this the 17[th] day of December, 2021 ## **JUDGMENT** These four writ petitions are filed by the same petitioner seeking identical reliefs based upon similar causes of action, for different months of the same assessment year. He is aggrieved by the rejection of his appeals on the ground of limitation. 2. The issue involved in the appeals related to the claim for refund of unutilized input tax credit for the months of July, August, September and October, all of the year 2017. The assessing authority partly rejected the claim for refund by Ext.P1 order produced in each of the writ petitions dated 29.03.2019 and 03.04.2019. 3. The grievance of the writ petitioner arises from the allegation that Ext.P1 order was never uploaded in the web portal of the respondents and hence, the petitioner could not file appeals in the electronic form, which is mandated as per the present provisions of law. According to the petitioner, Ext.P1 order was communicated to W.P.(C) No.8960/21 & Conn. Cases ## **-:9:-** him only on 10.04.2019 and instead of filing the appeals in the electronic form, petitioner preferred appeals in the physical form, but in so doing, a delay occurred. The 2[nd] respondent, as the Appellate Authority, rejected the appeals by Ext.P3 order, produced in each of the writ petitions, on the ground that the appeals are barred by limitation and that there is no provision for condoning the delay of more than 30 days. 4. Petitioner contends that since Ext.P1 order was never uploaded in the web portal, petitioner could not have, under any circumstances, preferred an appeal in the electronic form, that too, within the time prescribed. Relying upon the judgment of the Gujarat High Court in **Gujarat State Petronet Limited v. Union of India through Secretary** (SCA No.15607 of 2019), it is contended that the order of the Appellate Authority is liable to be set aside and the appeals ought to be considered on merits. 5. A statement has been filed by the respondents contending that once the module for filing the GST is available in the GST portal, an appeal can be filed only in the electronic form. However, in order to minimize the difficulties for the assessees, appeal in the manual form was also accepted and even processed manually. W.P.(C) No.8960/21 & Conn. Cases ## **-:10:-** Respondents further stated that, even while filing the appeal in the manual form, there was a delay of more than 180 days and that, on a combined reading of section 107(1) and section 107(4) of the Central Goods and Services Tax Act, 2017 (for short 'the Act'), the appeal ought to have been filed within three months from the date on which the order impugned is communicated and if the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, then the Appellate Authority was entitled to condone the delay up to a further period of one month. The respondents contended that the appeals were filed beyond 153 days, after the expiry of the condonable period of 30 days. 6. I have heard the arguments of Sri. A.Krishnan, learned counsel for the petitioner, Smt. Kaveri S. Thampi, learned Standing Counsel for respondents 1 and 2 and Sri. S. Manu, learned Assistant Solicitor General of India for the 3[rd] respondent. 7. Section 107(1) of the Act contemplates the filing of an appeal within three months from the date on which the decision or order is communicated to such person, while under section 107(4) of the Act, the period for presenting the appeal can be extended by a further period of one month, if sufficient cause is shown by the W.P.(C) No.8960/21 & Conn. Cases ## **-:11:-** appellant. By the provisions of Rule 108(1) of the Central Goods and Services Tax Rules, 2017 (for short 'the Rules'), the appeal has to be presented in Form GST APL-01 **,** along with the relevant documents, either electronically or otherwise, as may be notified by the Commissioner. 8. It is the admitted case of both the petitioner and the respondents that the orders impugned in the appeals, though dated 29.03.2019, were never uploaded in the web portal to enable the petitioner to prefer the electronic filing of appeals, as prescribed. There is no quarrel that the Commissioner has not issued any notification specifying any other form of appeal. However, on the basis of receipt of a copy of the order on 10.04.2019, the petitioner preferred appeals manually only on 09.01.2020, with a delay of 184 days. Thus, after referring to the decision in **Debabrata Mishra v. Commissioner of Central Tax and GST** [2020 (36) G.S.T.L. 325 (Ori)] as well as the judgment in **Assistant Commissioner (CT), LTU, Kakinada & Ors. v. Glaxo Smith Kline Consumer Health Care Limited** [2020 (36) G.S.T.L. 305], the Appellate Authority dismissed the appeals as time-barred. 9. While dismissing the appeals as time-barred, the Appellate W.P.(C) No.8960/21 & Conn. Cases ## **-:12:-** Authority went in a mechanical manner without appreciating that the orders that were impugned before the Appellate Authority, though required to have been uploaded in the web portal, were never uploaded. The period of limitation will start to run, as per the provisions of the Act, only when the order is uploaded in the web portal and not when the order is received in the physical form by the petitioner. When admittedly there was a failure on the part of the respondents to upload the order in the original, petitioner cannot be mulcted with the responsibility of preferring appeals within the time period stipulated. The time period stipulated in the statute for filing an appeal is part of the same transaction that exists with the uploading of an order in the original. 10. When the mode of appeal prescribed by Rules is only the electronic mode, the time limit of three months can start only when the assessee had the opportunity to file the appeal in the electronic mode. The assessee cannot be blamed if he waited for the order to be uploaded to the web portal, even if he had in the meantime received the physical copy of the order. The reliance upon Annexure R1(c) circular have no bearing on the case of the assessee as the same is at the most only an internal communication and not made W.P.(C) No.8960/21 & Conn. Cases ## **-:13:-** known to the public and cannot be treated as a notification contemplated under Rule 108(1) of the Rules. 11. In this context, it is appropriate to notice that there is no provision for filing an appeal manually. In the absence of such a provision, even though the petitioner has preferred appeals in the manual form subsequently, the same cannot work out as a prejudice to the petitioner to apply the period of limitation from the date of serving of physical copy of the order. 12. Cases of this nature are occurring on account of the transition phase brought in by the new regime of GST and technical glitches that are occurring in the transition phase. In such circumstances, a different approach is required, especially since the electronic mode of uploading the order and the electronic filing of appeal had not attained its technical perfection, at least till the recent past. 13. In a similar instance, the High Court of Gujarat, while considering **Gujarat State Petronet Limited v. Union of India** (2020 (41) G.S.T.L. 442) had by judgment dated 05.03.2020 set aside the order of the Appellate Authority, and ordered the delay to be condoned in preferring the appeal manually and remanded the W.P.(C) No.8960/21 & Conn. Cases ## **-:14:-** matter back for fresh consideration of the appeal. The observations of the Court are relevant in this context: “ _8_ . _On a perusal of the above provisions, it is apparent that the appeal is required to be filed in electronic mode only and if any other mode is to be prescribed then the same is required to be notified by way of a notification. There is nothing on record to show that any notification has been issued for manual filing of an appeal. In such circumstances, though the physical copy of the adjudication order was handed over to the petitioner, the time period to file appeal would start only when the order is uploaded on the GST portal. Without the order being uploaded, the petitioner could not file the appeal and therefore, the contention raised on behalf of the respondents that the uploading of the order and filing of the appeal are two different processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure to file the appeal manually. In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. Merely because the petitioner has filed the appeal manually, after exhausting all the efforts to ensure filing of the appeal and proper and legal manner, the impugned order rejecting such appeal on the ground of limitation is not sustainable the petitioner cannot_ _be penalised for lack of clarity of the provision in the new law is enacted._ ” W.P.(C) No.8960/21 & Conn. Cases ## **-:15:-** 14. I concur wholly with the aforesaid observations in the said judgment. 15. Hence, I am of the view that the petitioner is entitled to have his appeals that were filed manually, to be treated as having been filed within time, in the light of the failure of the department to upload Ext.P1 order in the web portal. Therefore, Ext.P3 order passed by the 2[nd] respondent in all these writ petitions are set aside and the 2[nd] respondent is directed to treat the appeals as filed within time and thereafter, to pass final orders in the appeals on merits, after affording sufficient opportunity of hearing to the petitioner. The writ petitions are allowed as above. Sd/- **BECHU KURIAN THOMAS** **JUDGE** vps W.P.(C) No.8960/21 & Conn. Cases ## **-:16:-** ## **APPENDIX OF WP(C) 8960/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.3.2019 PASSED BY 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPEAL DATED 3.8.2019 FILED BEFORE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14.1.2021 PASSED BY 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT AT AHAMEDABAD IN THE CASE OF NAMELY GUJARAT STATE PETRONET VS. UNION OF INDIA.** ## **RESPONDENT'S/S' EXHIBITS** **ANN.R1(a) TRUE COPY OF THE CIRCULAT NO.37/11/2018 DATED 15.03.2018** **ANN.R1(b) TRUE COPY OF THE CBIC CIRCULAR NO.17/17/2017 – GST DATED 15.11.2017 ANN.R1(c) TRUE COPY OF THE CIRCULAR NO.125/44/2019-GST DATED 18.11.2019 ANN.R1(d) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF ANDHRA PRADESH DATED 1.8.2019 IN WRIT PETITION NO.9324 OF 2019** **ANN.R1(e) TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING EXT.P2 APPEAL DATED 31.12.2019 ANN.R1(f) TRUE COPY OF THE PETITION DATED 5.1.2021 WITH ADDITIONAL GROUNDS FOR CONDONATION OF DELAY** ## W.P.(C) No.8960/21 & Conn. Cases ## **-:17:-** ## **APPENDIX OF WP(C) 8966/2021** ## **PETITIONER'S/S' EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 03.04.2019 PASSED BY 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE APPEAL DATED 03.08.2019 FILED BEFORE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14.01.2021 PASSED BY 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT OF AHAMEDABAD IN THE CASE OF NAMELY GUJARAT STATE PETRONET VS.UNION OF INDIA.** **RESPONDENT'S/S' EXHIBITS** **ANN.R1(a) TRUE COPY OF THE CIRCULAT NO.37/11/2018 DATED 15.03.2018** **ANN.R1(b) TRUE COPY OF THE CBIC CIRCULAR NO.17/17/2017 – GST DATED 15.11.2017 ANN.R1(c) TRUE COPY OF THE CIRCULAR NO.125/44/2019-GST DATED 18.11.2019** **ANN.R1(d) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF ANDHRA PRADESH DATED 1.8.2019 IN WRIT PETITION NO.9324 OF 2019** **ANN.R1(e) TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING EXT.P2 APPEAL DATED 31.12.2019 ANN.R1(f) TRUE COPY OF THE PETITION DATED 5.1.2021 WITH ADDITIONAL GROUNDS FOR CONDONATION OF DELAY** W.P.(C) No.8960/21 & Conn. Cases ## **-:18:-** ## **APPENDIX OF WP(C) 8977/2021** ## **PETITIONER'S/S' EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.03.2019 PASSED BY 1ST RESPONDENT.** - **EXHIBIT P2** - **TRUE COPY OF THE APPEAL DATED 03.08.2019 FILED BEFORE 2ND RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14.01.2021 PASSED BY 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF HONBLE HIGH COURT OF GUJARAT AT AHAMEDABAD IN THE CE OF NAMELY GUJARAT STATE PETRONET VS. UNION OF INDIA.** ## **RESPONDENT'S/S' EXHIBITS** **ANN.R1(a) TRUE COPY OF THE CIRCULAT NO.37/11/2018 DATED 15.03.2018** - **ANN.R1(b) TRUE COPY OF THE CBIC CIRCULAR NO.17/17/2017 – GST DATED 15.11.2017** **ANN.R1(c) TRUE COPY OF THE CIRCULAR NO.125/44/2019-GST DATED 18.11.2019** **ANN.R1(d) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF ANDHRA PRADESH DATED 1.8.2019 IN WRIT PETITION NO.9324 OF 2019** - **ANN.R1(e) TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING EXT.P2 APPEAL DATED 31.12.2019** - **ANN.R1(f) TRUE COPY OF THE PETITION DATED 5.1.2021 WITH ADDITIONAL GROUNDS FOR CONDONATION OF DELAY** W.P.(C) No.8960/21 & Conn. Cases ## **-:19:-** ## **APPENDIX OF WP(C) 9052/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 03-04-2019 PASSED BY 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE APPEAL DATED 03-08-2019 FILED BEFORE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14-01-2021 PASSED BY 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE JUDGEMENT OF HON'BLE HIGH COURT OF GUJARAT AT AHAMEDABAD IN THE CASE OF NAMELY GUJARAT STATE PETRONET VS. UNION OF INDIA.** ## **RESPONDENT'S/S' EXHIBITS** **ANN.R1(a) TRUE COPY OF THE CIRCULAT NO.37/11/2018 DATED 15.03.2018** **ANN.R1(b) TRUE COPY OF THE CBIC CIRCULAR NO.17/17/2017 – GST DATED 15.11.2017 ANN.R1(c) TRUE COPY OF THE CIRCULAR NO.125/44/2019-GST DATED 18.11.2019 ANN.R1(d) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF ANDHRA PRADESH DATED 1.8.2019 IN WRIT PETITION NO.9324 OF 2019** **ANN.R1(e) TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING EXT.P2 APPEAL DATED 31.12.2019 ANN.R1(f) TRUE COPY OF THE PETITION DATED 5.1.2021 WITH ADDITIONAL GROUNDS FOR CONDONATION OF DELAY**