M/S. Navya Foods Private Limited vs. Superintendent Of Central Tax

THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SMT JUSTICE V.SUJATHA WRIT PETITION No.1612 OF 2022 ORDER:- (Per Hon’ble Sri Justice C.Praveen Kumar) Heard Sri P.Karthik Ramana, learned counsel for the petitioner, Sri B.V.S.Chalapathi Rao, learned Senior Standing Counsel, Central Board of Indirect Taxes and Customs appearing for respondent Nos.1 and 2, and Sri N.Harinath, learned Assistant Solicitor General appearing for respondent No.3. 2. The present writ petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “……pleased to issue a Writ of Certiorari or any other appropriate writ or order or direction – (a) quashing the order of the 2nd Respondent in Appeal No.10/2020(T) GST, dated 30.7.2021 for the tax period October, 2018 and November, 2018 as illegal, arbitrary, unjustified and contrary to law and consequently direct the 2nd Respondent to admit the appeal and adjudicate the same on merits; (b) or in the alternative set-aside the order in original No.YL0101-01-2019-20, dated 15.11.2019 passed by the 1st Respondent as one without jurisdiction, contrary to the circular of the Central Board of Indirect Tax and Customs and contrary to Section 75(6) & 75(7) of the Central Goods and Services Tax Act, 2017 and Andhra Pradesh State Goods and Services Tax Act, 2017 in so far as the imposition of penalty of Rs.6,86,944/- for the tax period October, 2018 and November, 2018 is concerned and pass……” 3. The averments in the affidavit filed in support of the writ petition show that the petitioner is a Private Limited Company engaged in manufacture of jams, fruit jellies etc., and registered under the Central Goods and Services Tax Act, 2017 (for short, 2 “CGST Act” and the Andhra Pradesh State Goods and Services Tax Act, 2017 (for short, “the SGST Act”). On verification of the GSTR-3B monthly returns filed during the year 2018-19, respondent No.1 found that some of the GSTR 3B returns were filed beyond the due dates and thus, resulting in delayed payment of CGST/SGST/IGST. Hence, respondent No.1 demanded payment of interest and penalty of Rs.1,92,892/- and Rs.6,50,800/- respectively. For payment of the said amount, a show cause notice was issued to the petitioner on 25.4.2019. Subsequently, an assessment order, dated 15.11.2019, came to be passed by respondent No.1 confirming levy of interest of Rs.1,92,892/- and a penalty of Rs.6,86,944/-, which is higher than the penalty actually proposed in the show cause notice. The averments in the affidavit further show that the said order was served on the petitioner physically on 25.11.2019 informing that an appeal would lie under Rule 108(1) of the Central Goods and Services Tax Rules, 2017 (for short, “CGST Rules”). An appeal came to be filed by the petitioner vide Appeal No.10/2020(T)GST which came to be rejected on 30.7.2021 on the ground that it was filed beyond the period of limitation. Challenging the same, the present writ petition came to be filed. 4. Sri P.Karthik Ramana, learned counsel for the petitioner, would submit that in terms of Rule 142(5) of CGST/SGST Rules, a summary of the order issued under Section 73 shall be uploaded electronically in Form GST DRC-07 specifying therein the amount of tax, interest and penalty payable by the person chargeable with tax. According to him, the summary of the order was uploaded by the adjudicating authority only on 18.11.2021 and as such, the 3 period of limitation for filing an appeal has to be reckoned from the said date. He took us through relevant provisions in support of the same. In support of his plea, he also relied upon a judgment, dated 05.03.2020 reported in Gujarat State Petronet Limited vs. Union of India [R/Special Civil Application No.15607 of 2019]. 5. On the other hand, Sri B.V.S.Chalapathi Rao, learned Senior Standing Counsel appearing for respondent Nos.1 and 2, opposed the same contending that the reason for rejection is not because of lack of material but on the ground of limitation and as such, the argument of the learned counsel for the petitioner that no appeal could be filed by the petitioner cannot be accepted. He, however, submits that in view of the orders passed by the Hon’ble Supreme Court extending the period of limitation due to pandemic, the discretion is always left to the Court to pass appropriate orders. 6. Section 107 of the CGST Act reads as under:- “107. Appeals to Appellate Authority:- (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order 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 decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by