2021-TIOL-1369-HC-ORISSA-GST

Shree Udyog Vs CST

GST -   Adjudicating Authority passed the impugned order on 14th August, 2020 and uploaded it on the same day - The last date for the filing of the appeal against the said order was 17th November, 2020 - Petitioner did, in fact, file the appeal on 13th November, 2020 electronically, accompanied by a downloaded copy of the order appealed against - Under Rule 108 (3) of the OGST Rules, 2017, the appeal had to be accompanied by a certified copy of the order appealed against - Petitioner could furnish a certified copy of the order appealed against, only on 9th March, 2021, i.e., more than three months and 25 days after the filing of the appeal - According to the Appellate Authority this delay could not be condoned and, therefore, the appeal itself was dismissed as not having been preferred in time - Petitioner, points out that while the appeal was accompanied by the downloaded printed copy of the order appealed against at the time of filling of the appeal, it was not accompanied by the certified copy thereof at that stage since the Lawyer who had filed the appeal was in self quarantine as he had come into contact with a client who had tested positive for Covid-19.

Held:  The difficulties generally faced by lawyers and litigants in applying for and obtaining certified copies of orders is generally known - Acknowledging this reality, the explanation offered for the delay in furnishing such certified copy ought to have been accepted by the Appellate Authority and the delay in that regard ought to have been condoned - Also the wording of Section 107(4) is such that the authority is not precluded from condoning a delay of a longer period - Considering that the explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal, which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner's appeal for being considered on merits by the Appellate Authority - This is a case of substantial compliance and the interests of justice ought not to be constrained by a hyper-technical view of the requirement that a certified copy of the order appealed against should be submitted within one week of filing of the appeal - To repeat, in these Covid times when there is a restricted functioning of Courts and Tribunals in general, a more liberal approach is warranted in matters of condonation of delay, which cannot be said to be extraordinary - In other similar matters, the Appellate Authority has declined to condone the delay in the appellants filing a certified copy of the order appealed against - It is clarified that the Appellate Authority may adopt a liberal approach considering that these are times of restricted functioning of Courts and tribunals due to the Covid pandemic - As long as the appeal is accompanied by an ordinary downloaded copy of the order appealed against, verified as a true copy by the Advocate for the Appellant, the delay in filing such certified copy, subject to it not being extraordinary, the Appellate Authority may, as long as the restricted functioning of the Court and Tribunals due to the Covid pandemic continues, be condoned - Appeal is  restored to the file of the Additional Commissioner of State Tax (Appeal), Balasore - Appellate Authority will proceed to decide the appeal on merits and endeavour to dispose it of by a reasoned order in accordance with law not later than 4th October, 2021 -  Writ petition is disposed of: High Court [para 11, 12, 13, 14]

- Petition disposed of: ORISSA HIGH COURT

2021-TIOL-01-AAR-CUS

Apple India Pvt Ltd

Cus - Apple HomePod merits classification under SH 8517 6290 of the CTA, 1975: Customs AAR

Cus - If an application for advance ruling has been filed and there is a delay in rendering a decision, imports made after filing the advance ruling application would not take away the right of the applicant to receive a ruling: Customs AAR 

- Disposed of: AAR

2021-TIOL-1368-HC-MAD-CUS

Travel Masters India Pvt Ltd Vs Pr.CC

Cus - Petition is filed challenging the order passed by the Assistant Commissioner of Customs, EPCG Section, Chennai for recovery of dues of Rs.30,30,000/- along with applicable interest towards non-fulfilment of export obligation under Export Promotional Capital Goods (EPCG) Authorization.

Held: Petitioner has approached the Joint Director General of Foreign Trade for issuance of Export Obligation Discharge Certificate (EODC) and the application is pending - Petitioner has also made a submission that he will approach the authority for early disposal of the application and therefore, some time is to be granted for submission of the said certificate -Thirty days' time is granted for the purpose of submission of EODC by the writ petitioner - In the event of not submitting the said certificate to the respondents within a period of thirty days from the date of receipt of a copy of this order, the respondents are at liberty to realise the bank guarantee already furnished - Writ petition stands disposed of: High Court [para 6 to 8]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1367-HC-MAD-ST

Diksat Transworld Ltd Vs CST

ST - Final order passed by the Settlement Commission is under challenge in the present writ petition - Petitioner contends that the CCESC, without considering the grounds raised by the petitioner, rejected their application and returned the case back to the adjudicating authority.

Held: In the present case, there is a clear finding that the petitioner has not cooperated for the adjudication only in the event of true and clear declaration - Settlement can be made and even an iota of doubt in respect of the declaration could be sufficient to send the matter back to the adjudicating authority - Thus, the writ petition is devoid of merits and is liable to be dismissed - In the absence of an element of truthfulness in the application, the Commission is liable to reject the application in limine and send the matter back to the adjudicating authority by invoking Section 32L of the Act - This being the scope of consideration by the Settlement Commission, the findings of the Settlement Commission are of paramount importance for the purpose of considering this writ petition - The case involves both disputed questions of fact and law and therefore, it would be appropriate that the case is to be adjudicated by the jurisdictional officer after appreciation of facts and evidences let in by the applicant - When the Commission itself categorically made a finding that it is not possible to settle the matter and documents and evidences are to be examined by the Adjudicating Authority, then there is no much scope for the High Court to interfere with the orders passed and by sending the matter back to the Adjudicating Authority, the petitioner would also get an opportunity to produce all the documents and evidences to establish his case - Settlement of disputes can never be claimed as a matter of right - Court has no hesitation in arriving a conclusion that the petitioner has not established any acceptable reasons for the purpose of interfering with the order passed by the Settlement Commission - Petition dismissed: High Court [para 5, 7, 9, 10, 12, 13]

- Petition dismissed: MADRAS HIGH COURT