The court affirmed that while the CGST Act imposes strict limitations on appeals, such limitations do not apply in writ proceedings, allowing for the restoration of the appeal based on merits.

ORDER :

This writ petition seeks to challenge the order dated 11th June 2024 passed by the Joint Commissioner of the Central Goods and Service Tax and Central Excise at Jodhpur whereby the order in appeal No.425 (RSG) CGST/JDR/2024 was dismissed as barred by limitation.

2. The Joint Commissioner of the CGST referred to the provisions under Section 107 and the circular No.148/04/2021- GST dated 18th May 2021 and formed an opinion that beyond the period of three months with the extended period of further one month if the appeal under Section 107 of the CGST Act, 2017 is not filed, the same cannot be entertained by the appellate authority. The Joint Commissioner of the CGST also referred to a decision in "Plenuel Nexus Private Ltd. v. Additional Commissioner Headquarter" wherein the Kerala High Court rendered the following opinion.

"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 appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period".

Relying on the above interpretation, it was held as under:-

"10. The Central Goods and Services Tax Act is a special statute and a self-contained code by itself. Section 107 is an inbuilt mechanism and has impliedly excluded the application of the Limitation Act. It is trite, that the Limitation Act will apply only if it is extended to the special statute. It is also rudimentary that the provisions of a fiscal statute have to be strictly construed and interpreted."

3. The Joint Commissioner of the CGST further held that since the appeal is not filed within the prescribed limit, an adjudication on merits cannot be rendered.

4. The Joint Commissioner of the CGST held as under:

"12. Now, I take up the second issued regarding merit of the case, I find that the appellant has not filed the appeal in prescribed time limit as per Section 107(1) and 107(4) of the CGST Act, 2017, therefore, the instance case cannot be decided on merits. In view of the above discussion, I find that the appellant filed the present appeal beyond the time limit prescribe under Section 107 of the CGST Act, 2017. Accordingly, I dismiss the appeal filed by the appellant being time barred in terms of Section 107 of the CGST Act, 2017, without going on merit.

13. In view of the above it is clear that the appellate authority has no power to allow an appeal which is filed beyond the prescribed limit. Accordingly, I hold that, since the appeal is filed after expiry of the pre