Order Date – 02 August 2023

Parties: JEM Exporter Vs Union of India, State of Maharashtra, Commissioner of CGST & C. Ex, Appeal-I, Joint Commissioner, Appeal-I, CGST & Cx, Deputy Commissioner, Assistant Commissioner, Superintendent.

Facts –

• The Petitioner, JEM Exporter, engaged in the business of exporting mobile handsets. On 10th April 2020 and 24th February 2020, the Petitioner made an application for refund of Input Tax Credit for the period February 2020 and January 2020.
• On 25th March 2021, a show cause notice was issued alleging that the refund was wrongly availed by the petitioner as goods were purchased from non-existing entities.
• On 13th August 2021, an order was issued confirming the demand raised in notice and the GST registration of the Petitioner was also cancelled under section 29(2)(e) of the CGST Act, 2017. On an appeal filed before the Commissioner (Appeals), it upheld the O-I-O and also stated that the pre-deposit for fling the appeal has not been made by the Petitioner and furthermore, the appeal is not signed as per Rule 26 and, therefore, the Appeals are liable to be rejected.

Issue – 

• Whether the Commissioner (Appeal) was justified in rejecting the appeal on non-supply of certified copy of adjudication order? 

Order – 

• The Divisional Bench of Hon’ble High Court observed that justice cannot be denied for failure to comply with the procedure without giving an opportunity to the Appellant to rectify the procedural defects. The Commissioner (Appeal) ought to have issued a defect memo calling upon the Petitioner to produce the proof of pre-deposit of tax as per section 107(6) of the CGST Act, 2017, for filing the certified copy of the order and for authentication of the appeal memo as per rule 26(2)(a).
• The Commissioner (Appeal) having not given an opportunity to the Petitioner for curing the procedural defect was not justified in rejecting the appeal. This would be contrary to the principal of natural justice.
• The Court also relied on the recent decision of the Orissa High Court in the case of Ashishkumar Kar Vs. Central Board of Excise and Customs that if the Appellant files an appeal in ignorance of position that he has to file certified copies of adjudication order then Appellate Authority has to intimate Appellant with regard to defect by giving him opportunity to rectify the same within the stipulated time. Otherwise, it would be in violation of principal of natural justice.
• Hence it was held that Commissioner (Appeal) will issue a defect memo to the Petitioner pointing out the procedural defect in the appeal and would give adequate opportunity for rectifying the same.
• The Writ Petition is disposed of