Global Dried Flowers v. Union Of India And ORS.

M/L 157 17.09.2024 sb Ct 5

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 19051 of 2024 Global Dried Flowers versus Union of India & Ors.

Ms. Sweta Mukherjee Ms. Tanima Nandy For the petitioner.

Mr. Bhaskar Prosad Banerjee Mr. Tapan Bhanja ... For CGST authorities.

1. Challenging the order dated 26th March, 2024, passed under Section 107 of the CGST/WBGST Act, 2017 (hereinafter referred to as the "said Act"), the instant writ petition has been filed.

2. Ms. Mukherjee, learned advocate appearing in support of the writ petition would submit that the petitioner being aggrieved by the refund rejection order passed by the proper officer on 9th February, 2023, in respect of the tax period 1st March, 2022 to 31st March, 2022, had filed an appeal on 9th May, 2023 within the time limit prescribed.

3. By drawing attention of this Court to the order impugned, she would submit that the original appeal was filed on 9th May, 2023 against the refund rejection orders both dated 9th February, 2023 before the Park Street Division, Kolkata South

Commissionerate. Subsequently, the petitioner was called upon to submit a physical copy of the appeal, which the petitioner did before the Additional Commissioner (Appeal) CGST & CX on 5th October, 2023. She submits that notwithstanding issuance of provisional acknowledgement in terms of Rule 108(3) of the Central Goods and Services Rules 2017 (hereinafter referred to as the "said Rules") which is required to be considered as date of filing of the appeal, however, the appellate authority by treating the date of submission of the physical copy of the appeal on 5th October, 2023 as the date of filing of the appeal, had treated the same as time barred. Such finding arrived at by the appellate authority is perverse to say the least.

She would submit that the appellate authority by relying on the un-amended provisions of Rule 108(3) of the said Rules had taken such decision. Such decision cannot be sustained. She further submits that since the Appellate Tribunal has not been constituted, the present writ petition has been filed. Having regard to the facts as noted above, she submits that this Court may be pleased to remand the matter back to the appellate authority or in the alternative, hear out the writ petition on merits.

4. Mr. Banerjee, learned advocate appearing on behalf

of the respondents acknowledges the fact that in this case on filing of the appeal a provisional acknowledgement was issued. From the records it would transpire such provisional acknowledgement was issued within the time prescribed for filing of the appeal.

5. Having heard the learned advocates appearing for the respective parties and considering the materials on record, I find that in terms of the Rule 108(3) of the said Rules that date of issuance of provisional acknowledgement is to be considered as the date of filing of the appeal. Admittedly, in this case, from the provisional acknowledgement issued by the respondents it would transpire that the appeal had been filed on 9th May, 2023. The order impugned before the appellate authority is dated 9th February, 2023. Although there appears to be a marginal delay of one day in preferring the appeal, I find such delay is entirely marginal and the appellate authority ought to have condoned such delay.

6. Having considered the peculiar facts of this case and having considered the fact that the Appellate Tribunal is yet to be constituted, I am of the view that the appellate authority ought to have, in the given facts, condoned the delay having regard to the

provisional acknowledgement issued by the respondents.

7. In view thereof, while setting aside the order dated 26th March, 2024, I remand the matter back to the appellate authority for reconsideration of the appeal on merits.

8. The appellate authority having regard to the fact that the appeal had been filed on 9th May, 2023 shall dispose of the appeal on merits as expeditiously as possible, preferably within a period of six weeks from the date of communication of this order.

9. With the above observations and directions, the writ petition is disposed of.

Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities.

(Raja Basu Chowdhury, J.)