Point of Law: Section 107 has an inbuilt mechanism and has impliedly excluded application of Limitation Act.

JUDGMENT :

C.S. DIAS, J.

1. Can an appeal be filed beyond the time period prescribed under Section 107 (4) of the Central Goods and Services Tax Act, 2007 is the point posed in this writ petition.

2. The petitioner is a firm engaged in direct marketing. The petitioner had a GST registration. Due to the Covid-19 pandemic, the petitioner's business got affected and was prevented from filing the returns on time. The respondents, by Ext.P2 order, cancelled the GST registration. Even though the petitioner preferred Ext.P3 appeal before the 1st respondent, by Ext.P4 order, the appeal was rejected on the ground of delay. Exts.P2 and P4 are arbitrary and unjustifiable. Hence, the writ petition.

3. Heard; Sri. Biju C. Abraham, the learned Counsel appearing for the petitioner and Smt. Thushara James, the learned Senior Government Pleader, appearing for the respondents.

4. The learned Counsel for the petitioner argued that it was only due to the Covid-19 pandemic that the petitioner was prevented from filing the return on time. The petitioner’s appeal was perfunctorily rejected, by the 1st respondent. Ext.P4 order is erroneous. The learned Counsel placed reliance on the decision of the High Court of Uttarakhand in Vinod Kumar vs. Commissioner Uttarakhand State GST and Others, (2023) 109 GSTR 85 to canvass the position that as there is an infringement of the petitioner's right to life, this Court can set aside Exts.P2 and P4 orders under Article 226 of the Constitution of India. He prayed that the writ petition may be allowed.

5. The learned Government Pleader countered the above submission by contending that by virtue of Section 29(2)(c) of the Central Goods and Services Tax Act, 2007 (in short 'Act'), the proper officer has the power to cancel the GST registration if the registered person does not file the returns for such continuous period as may be prescribed, which at that point of time was six months. If the person is aggrieved by the cancellation, his remedy is to file an appeal under Section 107 of the Act. However, the appeal has to be filed within the time frame prescribed under Section 107(4) of the Act, that is, three/six months, as the case may be, with a further period of one month. An appeal filed beyond the permitted time can only be dismissed as time-barred. It is in view of the above restrictive time frame that the 1st respondent rejected the appeal. There is no error in Ext.P4 order warranting interference by this Court. Hence, the writ petition may be dismissed.

6. By Ext.P2 order, the petitioner's GST registration was cancelled on 10.08.2022. The petitioner preferred Ext.P3 appeal on 07.03.2023, i.e. after 209 days, which is undoubtedly beyond the statutory period fixed under Section 107 (4) of the Act.

7. Section 107(4) of the Central Goods and Services Tax Act, 2017 reads thus:

“(4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.”

8. Interpreting an analogous provision under the Central Excise Act, 1944, the Honourable Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 held as follows:

“8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short “the Limitation Act”) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appe