M/S Sree Krishna Hot Dip Galvanizers vs. State Of Karnataka

Heard learned counsel for the petitioner and learned HCGP for respondents and perused the material on record.

The material on record discloses that aggrieved by the impugned penalty order dated 14.09.2022 passed by the second respondent under the petitioner preferred an appeal before the second respondent in the bonafide / wrong impression that it was the Appellate Authority. It is the contention of the petitioner that subsequently he realized that the appellate authority was actually the respondent No.4 and not the respondent No.2 as a result of which the appeal preferred before the respondent No.2 was before NC: 2024:KHC:2212 the wrong forum and consequently the petitioner preferred one more appeal on 27.06.2023 before the fourth respondent and sought for extension of time under Section 14 of the Limitation Act. In addition thereto, the petitioner places reliance upon the notification issued by the Government of India by the Central Board of Indirect Taxes (CBIT) and Customs dated 02.11.2023 which extends the time for preferred appeals up to 31.01.2024. Under these circumstances, it is contended that the respondent committed an error in issuing impugned endorsement summarily dismissing the appeal as barred by limitation and the same deserves to be set aside.

Per contra, learned HCGP submits that in the light of the undisputed fact that the petitioner had preferred the instant appeal before the fourth respondent only on 27.06.2023 beyond the prescribed period of 120 days (90 + 30) the respondent was justified in dismissing the appeal as barred by limitation by passing the impugned orders which does not warrant interference in the present petition.

A perusal of the impugned endorsement issued by the respondent will indicate that the sole ground on which the appeal NC: 2024:KHC:2212 was dismissed was as being barred by limitation in the light of the prescribed period contained in Section 107 of the KGST Act, 2017. While it is true that Section 29(2) of the Limitation 1963 excludes the applicability of Section 5 of the Limitation Act for the purpose of condonation of delay is concerned, Section 14 of the Limitation Act which excludes time spent before a wrong / incorrect forum for the purpose of concluding the prescribed period is applicable to an appeal preferred under Section 107 of the KGST Act in the light of the judgment of the Hon’ble Division Bench in the case of DEPUTY COMMISSIONER AND SPECIAL ACQUISITION OFFICER, BANGALORE v/s M/s. S.V GLOBAL MILL LIMITED.

It is also necessary to point out that as per circular issued by the CBIT, the period prescribed for preferring the appeal has been extended up to 31.01.2024 and on this ground also, respondent committed an error in issuing the impugned endorsement which deserves to be set aside, quashed and necessary directions are to be issued to the respondent to consider

In the result, I pass the following ORDER (i) The petition is hereby allowed (ii) Impugned endorsement dated 19.08.2023, is hereby set aside (iii) The respondent No.4 – Appellate Authority is directed to consider the appeal filed by the petitioner on merits and pass appropriate orders in accordance with law without reference to the issue/question of limitation which stands concluded in favour of the petitioner under this order. JUDGE