The Gujarat High Court in the case of OTSUKA PHARMACEUTICAL INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. vide R/SPECIAL CIVIL APPLICATION NO. 13209 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 13210 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 13212 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 13213 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 13215 of 2023 dated 27.03.2024, has held that where the order which was appealed against was issued or uploaded on common portal and same could be viewed by appellate authority, requirement of submission by assessee of certified copy of such uploaded order to vouch for its authenticity would be insignificant in view of availability of order online, in terms of amendment made in Rule 108 and 109 of the CGST Rules, 2017 having retrospective effect.

Facts of the case: – In this case, the petitioner is engaged in the manufacture and export of pharmaceuticals products. He exercised option of exporting goods without payment of tax and seeks refund of unutilised input tax credit and for this he made an online application for refund. The Authority rejected the part of refund claim as they found some difference between the value of exports as mentioned in the invoice and the shipping bill. Being aggrieved, Petitioner filed the appeal and submitted certified copies of the Order-in-Original during the pendency of the appeal. However, the appellate authorities relying upon sub-rule (3) of the Rule 108, finds delay in submitting the certified copies of orders and decline to entertain the appeal.

Petitioner Contention: – The petitioner contended that requirement of submitting certified copies within stipulated time as per Rule 108(3) of the CGST Rules would not apply as he preferred online appeal based on the Order-in-Original uploaded by the adjudicating authority. Reliance placed upon the Minutes of 48th Meeting of the GST Council dated 17th December, 2022 which provided for amendment in Rule 108 as a clarificatory amendment, which provides that the period of limitation could be considered only if the order is passed manually and not uploaded on the common portal and the same is not available to the appellate authority on the common portal. 

In such cases, non-submission of the certified copy by the appellant restricts the appellate authority from entertaining the same. It was, therefore, submitted that the entire basis of the order passed by he appellate authority considering the date of submission of the certified copy by the petitioner to be considered as actual date of filing of appeal is without any basis.

Department Contention:- The department has simply followed the Rule 108(3) which says that in case where the certified copies of order has submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy and therefore considering delay appeal cannot be entertained.

Held:- 

• Amendment in Rule 108 and Rule 109 provided that when order which was appealed against was issued or uploaded on common portal and same could be viewed by appellate authority, requirement of submission by assessee of certified copy of such uploaded order to vouch for its authenticity would be insignificant in view of availability of order online.
• Amendment had retrospective effect as same was clarificatory in nature and therefore, impugned order passed by appellate authority rejecting appeal on ground of delay would not survive.

The order passed by the appellate authority rejecting the appeal on the ground of delay was quashed and set aside with a direction upon the authority to pass fresh order after giving opportunity of hearing to Petitioner.

To read the complete judgment 2024 Taxo.online 629