1. This writ petition has been filed assailing the order dated 21.11.2019 whereby the appeal filed by the petitioner challenging the order passed under Section 129 (3) of the U.P. G.S.T. Act 2017 has been dismissed by the Additional Commissioner, Grade-II, (Appeal)-I, Commercial Tax, Noida, the order dated 14/08/2018 passed under Section 129 (3) of the U.P. G.S.T. Act 2017/C.G.S.T./I.G.S.T. Act, 2017 whereby a tax of ₹ 3,52,800/- alongwith penalty of ₹ 3,52,800/- and interest at the rate of 18% total amount of ₹ 705600/- has been imposed against the petitioner. Further a prayer has been made for the refund of the amount of penalty of ₹ 3,52,800/-.
2. Facts, in nutshell, are that petitioner, who is a registered dealer under the provisions of GST Act, is in the business of buying and selling plastic granules (PP). Petitioner’s firm had purchased 20,000 Kilograms of plastic granules from one M/s. H.K. Trading Company, New Delhi to be sent to M/s. Priaymbada Industries Private Limited, Gorakhpur. While the goods were on their way to Gorakhpur through Vehicle No. U.P. 53 DT 3455, on 11.08.2019 the vehicle in question was intercepted by the mobile squad of Tax Department at Sikandara Toll Plaza, and when the documents were inspected various discrepancies and anomalies were found in the documents pertaining to the goods loaded in the vehicle. The vehicle in question was detained and notice was issued to the petitioner under Section 20 of the I.G.S.T. Act, 2017 read with Section 68 (3) of the C.G.S.T. Act. A reply was submitted, but the same not being found in order, on 14.08.2018 the authorities concerned imposed a tax of ₹ 3,52,800/- and also levied penalty of the same amount of ₹ 3,52,800/-. The said order was served upon the driver of the vehicle and the entire amount of ₹ 7,05,600/- was deposited on the same date itself i.e. 14.08.2018 and the goods and vehicle in question were released.
3. It appears that after a delay of about eight months the order dated 14.08.2018 was challenged by the petitioner before first Appellate Authority on 16.07.2019, on the ground that as the copy of order and demand was not reflected on the web portal of the taxing authorities and driver of the vehicle has not informed about the order and demand made from the said order, the same could not be challenged within statutory period. On 21.11.2019 the first Appellate Authority rejected the appeal of the petitioner on ground of delay.
4. Sri Rakesh Kumar, learned counsel for the petitioner, has submitted that the first Appellate Authority should have condoned the delay in filing of appeal and heard the appeal on merits as the order dated 14.08.2018 was not available on the website and petitioner was not aware of the filing of appeal offline, as such, there has been delay in filing the appeal within the statutory time fixed under Section 107 of the Act, which is three months and further the Appellate Authority is empowered to entertain the appeal presented within further one month. It was also contended that the appeal has been rejected on technical ground of delay and the order passed under Section 20 of the I.G.S.T. Act was only on the basis of minor clerical mistake, which appeared in the E-way Bill regarding wrong mentioning of the number of vehicle and thus the imposition of penalty of ₹ 3,52,800/- is totally arbitrary and illegal.
5. Reliance has been placed upon a decision of this Court in Writ-Tax No. 822 of 2018 (M/S Central Industrial Security Force Vs. Commissioner of Central Goods and Service Tax and Central Excise and two others) decided on 23.05.2018 wherein the Court had condoned the delay in filing the appeal beyond the prescribed period of limitation.
Reliance has also been placed upon a decision of coordinate Bench of this Court in Writ-Tax No. 1366 of 2019 (M/S Jindal Pipes Limited Vs. State of U.P. and three others) wherein this Court had held that the service of the order upon the driver was not a service upon a person, who has been affected by the order and the impugned order was quashed and the Court held the appeal filed to be within limitation as provided under Section 107 of the Act.
6. Per contra, Sri Bipin Kumar Pandey, learned Standing Counsel appearing for the State, has submitted that the goods were intercepted at Sikandara Toll Plaza, and various anomalies were found in the documents pertaining to the goods loaded in the vehicle. According to him validity of the E-way bill has been provided under Rule 138 (10) of the Goods and Service Tax Rules, and the E-way bill pertaining to the transit in question was issued on 10.08.2018 and was valid till 13.08.2018 i.e. for four days and the distance between New Delhi and Gorakhpur being more than 800 KM cannot be completed within the period of four days mentioned in Eway bill. Further, the vehicle number in question and other information was also wrongly mentioned in the tax invoice pertaining to the transit, as was required by the department, which is available on the departmental portal.
7. Sri Pandey, learned Standing Counsel, further submitted that as there is violation of the statutory provisions specified under Section 129 (1) of the Act, detention order (MOV-6) was passed followed by a show cause notice under Section 129 (3) of the Act. The show cause notice was served upon the driver of the vehicle and thereafter penalty order was passed on 14.08.2018 affirming the amount of tax and penalty, which was deposited by the petitioner and the goods and vehicle were released. He further submitted that the demand order i.e. MOV-9 was uploaded on the portal as well as it was provided to the driver of the vehicle and petitioner had himself annexed the copy of the said order which he obtained online through the departmental website.
8. Sri Pandey, learned Standing Counsel, further invited the attention of the Court to annexure No. 4 which is memo of appeal filed by the petitioner before the Appellate Authority wherein at serial no. 5 the date of order is mentioned as 14.08.2018, while at serial no. 7 the date of communication of the order appealed against has been shown as 14.08.2018, thus, it is wrong to say that the order was not served upon the petitioner and the petitioner did not have the knowledge because of the fact that same was not reflected online and the petitioner could not file the appeal online. He further invited the attention of the Court to the affidavit filed alongwith delay condonation application wherein at serial no. V and IX the reasons have been assigned by the petitioner that due to non-functioning of online filing facility and the fact that petitioner being unaware of the offline filing mechanism, there occurred delay in filing the appeal.
9. It is further contended that nowhere in the memo of appeal or in the writ petition the petitioner has taken the ground that the copy of the penalty order was served upon the driver of the vehicle and was not handed over to the petitioner, thus, the appeal could not be filed well within time, and it was during the argument that the counsel has come up with such a case which was not there before the authorities.
10. Lastly, Sri Pandey has submitted that as there is statutory provisions and the authorities cannot extend the period of limitation, thus, the appeal filed by the petitioner is totally time barred. He placed before the Court decision rendered by a coordinate Bench of this Court in Writ-Tax No. 291 of 2020 (M/s. Polo International Vs. State of U.P. and others) wherein this Court had given the opportunity to approach the State Appellate Tribunal so constituted. Reliance has been placed upon decision of the Apex Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others, 2008 NTN (36) 9 wherein the Apex Court held that the Appellate Authority has no power to allow the appeal to be presented beyond period of 30 days, thus, there is complete exclusion of Section 5 of the Limitation Act. Similarly, in a matter relating to Central Excise the Apex Court in the case of Commissioner of Custom and Central Excise Noida Vs. M/s. Punjab Fibres Limited, JT 2008 (2) SC 458 held that the reference which ought to have been made within 180 days from the date of order passed by the Tribunal is served on the Commissioner or any other authority and any delay in making the reference application cannot be condoned. Reliance has also been placed upon a decision of the Apex Court in the case of Assistant Commissioner (CT) LTU Kakinada and others Vs. M/s. Glaxo Smit Kline Consumer Health Care Limited, Civil Appeal No. 2413 of 2020, wherein the Apex Court had taken the view that no appeal can be filed beyond the statutory period and no indulgence can be shown by the High Court. Relevant paragraph nos. 18 and 19 are extracted here as under;
“18. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such.
19. Arguendo, reverting to the factual matrix of the present case, it is noticed that the respondent had asserted that it was not aware about the passing of assessment order dated 21.6.2017 although it is admitted that the same was served on the authorised representative of the respondent on 22.6.2017. The date on which the respondent became aware about the order is not expressly stated either in the application for condonation of delay filed before the appellate authority, the affidavit filed in support of the said application or for that matter, in the memo of writ petition. On the other hand, it is seen that the amount equivalent to 12.5% of the tax amount came to be deposited on 12.9.2017 for and on behalf of respondent, without filing an appeal and without any demur – after the expiry of statutory period of maximum 60 days, prescribed under Section 31 of the 2005 Act. Not only that, the respondent filed a formal application under Rule 60 of the 2005 Rules on 8.5.2018 and pursued the same in appeal, which was rejected on 17.8.2018. Furthermore, the appeal in question against the assessment order came to be filed only on 24.9.2018 without disclosing the date on which the respondent in fact became aware about the existence of the assessment order dated 21.6.2017. On the other hand, in the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which presupposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volume of turnover and that the respondent had already deposited 12.5% of the additional amount in terms of the previous order passed by it. That reason can have no bearing on the justification for non-filing of the appeal within the statutory period. Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy Manager-Finance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay.
Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or no-compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all.”
11. Having heard learned counsel for the parties and from the perusal of the material on record, it transpires that while goods which were on their way from New Delhi to Gorakhpur being intercepted at Sikandara Toll Plaza by the mobile squad of the taxing authorities found the papers, accompanying the goods, not being in conformity, a show cause notice was given by the authorities and was served upon the driver of the vehicle in question and a reply was submitted. On the same day the penalty order was passed and was served upon the driver itself and the amount of tax demand as well as penalty was deposited by the petitioner on the same day i.e. 14.08.2018, pursuant to which the goods and vehicle were released.
12. Argument raised by learned counsel for the petitioner that the penalty order was not reflected on the web-portal of the department concerned, and the petitioner having no knowledge of filing the appeal offline, could not file the same within the statutory period, as provided under Section 107 of the Act, cannot be accepted to the extent that neither in the memo of appeal or in the delay condonation application there is a single whisper as to the lack of knowledge of the fact that the appeal can be filed offline.
13. It has been pressed by the department that the memo of the appeal reflects that the communication of the order was made on 14.08.2018 and is accepted to the petitioner, thus, he cannot take the plea that the order was not served upon him and was not uploaded on the web-portal of the department, as each and every order and demand is uploaded on the web-portal and the plea taken is only to the extent for getting the delay in filing the appeal condoned. As it is evident from the decision of the Apex Court in the case of Glaxo Smith Kline Consumer Health Care Limited (Supra) wherein the Apex Court has categorically held that the statutory period specified for filing of appeal cannot be condoned as the remedy of appeal is creature of statute and if period of 90 days is provided for challenging the penalty order, the same cannot be condoned and extended by the High Court exercising power under Article 226 of the Constitution of India.
14. Further, the petitioner neither in the present writ petition nor in the grounds of appeal before the first Appellate Authority had disclosed the fact that during which period the order dated 14.08.2018 was not reflected on the web-portal of the department and when did he came to know that the appeal could be filed offline. In the rejoinder affidavit filed by the petitioner it is only submitted that the demand order as well as penalty order dated 14.08.2018 was not uploaded but no specific denial has been made to the averment made by the department that all the orders are uploaded on the web-portal of the department and similarly the demand order as well as penalty order dated 14.08.2018 passed against the petitioner was also uploaded on the web-portal.
15. Moreover, in the rejoinder affidavit the petitioner has tried to build up a case that the order was served upon the driver of the vehicle in question which will not amount to the service upon the petitioner. This assertion cannot be accepted as from the perusal of memo of the appeal it is clear that the date of communication of order has been mentioned specifically as 14.08.2018. Further on the said date the entire amount was deposited by the petitioner, pursuant to which the goods and vehicle in question were released, thus, the argument as well as assertion made in the rejoinder affidavit cannot be accepted to the extent that no service was made upon the petitioner as the order was served upon the driver of the vehicle.
16. Reliance placed upon the decision of coordinate Bench of this Court in the case of M/s. Jindal Pipes Limited (Supra) is distinguishable in the facts of the present case and the benefit of the same cannot be extended to the petitioner, moreso, no such ground was ever taken by the petitioner before the first Appellate Authority while filing the appeal nor in the affidavit filed to the delay condonation application. The reliance placed upon the decision of Division Bench judgment of this Court in the case of M/S Central Industrial Security Force (Supra) is also of no help to the petitioner as the said case is also distinguishable in the facts of the present case, as in that case the delay was not occasioned because of any fault on the part of the petitioner that the Court granted time for filing the appeal.
17. As in the present case the petitioner was very well aware of the fact that against the penalty order dated 14.08.2018 he had the remedy of filing the appeal but the same was not availed within the statutory limit provided under Section 107 of the Act, but he has approached the first Appellate Authority after a delay of eight months on the ground that the web-portal of the department did not reflect the penalty order, while the same has been categorically denied by the department, to which the petitioner failed to respond with concrete answer, thus, no indulgence can be granted and the writ petition being devoid of merit is hereby dismissed.
18. However, Sri Pandey, learned Standing Counsel, in his usual fairness has placed before the Court a notification issued by the Ministry of Finance (Department of Revenue), Central Board of Direct Taxes and Custom published in Gazette of India on 03.12.2019, which extracted as under;
“Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Indirect Taxes and Customs
Order No. 09/2019-Central Tax
New Delhi, the 03rd December, 2019
S.O.(E).––WHEREAS, sub-section (1) of section 112 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this Order referred to as the said Act) provides that any person aggrieved by an order passed against him under section 107 or section 108 of this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to the Appellate Tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal;
AND WHEREAS, sub-section (3) of section 112 of the said Act provides that the Commissioner may, on his own motion, or upon request from the Commissioner of State tax or Commissioner of Union territory tax, call for and examine the record of any order passed by the Appellate Authority or the Revisional Authority under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act for the purpose of satisfying himself as to the legality or propriety of the said order and may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within six months from the date on which the said order has been passed for determination of such points arising out of the said order as may be specified by the Commissioner in his order;
AND WHEREAS, section 109 of the said Act provides for the constitution of the Goods and Services Tax Appellate Tribunal and Benches thereof;
AND WHEREAS, for the purpose of filing the appeal or application as referred to in sub-section (1) or sub-section (3) of section 112 of the said Act, as the case may be, the Appellate Tribunal and its Benches are yet to be constituted in many States and Union territories under section 109 of the said Act as a result whereof, the said appeal or application could not be filed within the time limit specified in the said sub-sections, and because of that, certain difficulties have arisen in giving effect to the provisions of the said section;
NOW, THEREFORE, in exercise of the powers conferred by section 172 of the Central Goods and Services Tax Act, 2017, the Central Government, on the recommendations of the Council, hereby makes the following Order, to remove the difficulties, namely:-
1. Short title.- This Order may be called the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
2. For the removal of difficulties, it is hereby clarified that for the purpose of calculating,-
(a) the “three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal” in sub-section (1) of section 112, the start of the three months period shall be considered to be the later of the following dates:-
(i) date of communication of order; or
(ii) the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under section 109, enters office;
(b) the “six months from the date on which the said order has been passed” in sub-section (3) of section 112, the start of the six months period shall be considered to be the later of the following dates:-
(i) date of communication of order; or
(ii) the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under section 109, enters office.”
19. Relying upon this gazette notification coordinate Bench of this Court in the case of Polo International (Supra) held as under;
“It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months’ period shall be considered to be the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. It is urged that in such circumstances, the petitioner can wait and avail the remedy of filing appeal as and when the Tribunal is constituted. It is also pointed out that since the seized goods have already been released, therefore, no prejudice is going to be caused to the petitioner at the present moment.
Learned counsel for the petitioner very fairly admits the above legal position and also the fact that the goods have already been released.
In view of the above, the instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.”
20. In view of the above the petitioner is also provided indulgence to the above extent.