IMPORTANT POINT
The date of acknowledgment of an appeal is determinative for timeliness, superseding the date of physical filing, especially post-amendment of relevant rules.

ORDER :

The petitioner has sought for issuance of writ of certiorari to set aside the impugned order at Annexure-'A' dated 26.12.2023, whereby the appeal filed under Section 107(11) of the KGST/CGST Act, 2017 ('the Act' for brevity) was dismissed on the ground that the appeal was filed beyond time and the delay was such that it would be beyond the time that was condonable under Section 107(4) of the Act.

2. The facts on record would indicate that the refund order of the petitioner came to be rejected on 03.03.2022 which order was served on the petitioner on 03.03.2022. The appeal was filed through online mode, i.e. GST common portal on 03.06.2022 as is evident from the Form GST-APL-01.

3. The appeal is required to be filed under Section 107 read with Rule 108 of the CGST Rules, 2017 within a period of three months from the date on which the decision or order was communicated. Section 107(1) of the CGST Act reads as follows:-

"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."

4. The only ground which apparently has been taken note of, for rejecting the appeal was the date of physical re-filing of the appeal on 25.01.2023. It is not in dispute that the appeal was filed in online mode on 03.06.2022 though physical filing of the order impugned was made on 25.01.2023. Under Rule 108(3) of CGST Rules, 2017, prior to its substitution provided that the date of filing of appeal would be the date when the certified copy of the decision or order is submitted where such order was submitted after seven days from the date of filing Form GST APL-01.

5. Rule 108(3) of CGST Rules prior to its substitution by way of amendment on 26.12.2022 vide Notification No.26/2022-CT read as follows:-

"Appeal to the Appellate Authority

108. (1) xxx

(2) xxx

(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf:

Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy.

Explanation.- For the provisions of this rule, the appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number, is issued".

(emphasis supplied)

It must be noticed that Rule 108(3) is substituted with modification vide Notification No.26/2022-CT dated 26.12.2022 and the substituted Rule reads as follows:-

"In the said rules, in rule 108, for sub-rule (3), the following sub-rule shall be substituted, namely:-

"(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgement, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorized by him in this behalf and the date of issue of the provisional acknowledgement shall be considered as the date of filing of appeal:

Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgement, indicating the appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorized by him in this behalf, and t