Delhi High Court
Chegg India Pvt Ltd vs Union Of India & Ors. on 20 December, 2024
Bench: Prathiba M. Singh, Amit Sharma
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th December, 2024
+ W.P.(C) 1062/2024 & CM APPL. 4433/2024
CHEGG INDIA PVT LTD .....Petitioner
Through: Mr. Yogendra Aldak, Mr. Agim
Arora and Ms. Purvi Sinha, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Aditya Singla, SSC, CBIC, Mr.
Ritwik Saha, Mr. Umang Mishra, Ms.
Medha Navami, Mr. Sahil Parashar &
Mr. Inderjeet, Advs. (M:
9958846148)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner-Chegg India Pvt.
Ltd. under Article 226 of the Constitution of India challenging various
impugned orders passed by Respondent No.2-Additional Commissioner,
CGST, Appeals-1, Delhi on different dates. The impugned orders are
categorised as under:
i. Order in Appeal No. 105 to 115 dated 18th April, 2023 (hereinafter
‘OIA No. 105 to 115’)
ii. Order in Appeal No. 131 dated 28th April, 2023 (hereinafter ‘OIA
No. 131’)
iii. Order in Appeal No. 132 dated 28th April, 2023 (hereinafter ‘OIA
No. 132’)
3. These appeals arise from various refund applications filed by the
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Petitioner before the Respondent No.3-Assistant Commissioner CGST
(hereinafter ‘Proper Officer’) claiming the accumulated input credit for the
months of May, 2019 to December, 2019 and January, 2020 to May, 2020.
These refund applications were disposed of by the Proper Officer vide
various orders (hereinafter ‘Orders in Original’). The tabular statement
showing the various dates on which the Orders in Original were passed by
the Proper Officer in relation to the Petitioner’s refund applications, as well
as the corresponding dates on which appeals against said orders were filed,
both physically and online, is set out below:
A. OIA No. 105 to 115 dated 18th April, 2023
S. Relevant period Appeal No. Date of Date of
No. and OIO against online filing physical
which appeal filed filing
1. May 2019 OIO 321/GST/Appeal- 17.11.2021 15.11.2022
dated 19.08.2021 1/East/2022
dated 15.11.22
2. June 2019 OIO 320/GST/Appeal- 17.11.2021 15.11.2022
dated 26.08.2021 1/East/2022
dated 15.11.22
3. July 2019 OIO 319/GST/Appeal- 09.12.2021 15.11.2022
dated 16.09.2021 1/East/2022
dated 15.11.22
4. Aug 2019 OIO 318/GST/Appeal- 18.11.2021 15.11.2022
dated 16.09.2021 1/East/2022
dated 15.11.22
5. Oct 2019 OIO 317/GST/Appeal- 18.11.2021 15.11.2022
dated 16.09.2021 1/East/2022
dated 15.11.22
6. Sept 2019 OIO 316/GST/Appeal- 18.11.2021 15.11.2022
dated 11.11.2021 1/East/2022
dated
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7. Nov 2019 OIO 315/GST/Appeal- 09.12.2021 15.11.2022
dated 08.10.2021 1/East/2022
dated 15.11.22
8. Dec 2019 OIO 314/GST/Appeal- 18.11.2021 15.11.2022
dated 1/East/2022
08.10.2021 dated 15.11.22
9. Jan 2020 OIO 313/GST/Appeal- 09.12.2021 15.11.2022
dated 11.11.2021 1/East/2022
dated 15.11.22
10. Feb 2020 OIO 312/GST/Appeal- 09.12.2021 20.12.2022
dated 11.11.2021 1/East/2022
dated 15.11.22
11. Mar 2020 OIO 311/GST/Appeal- 09.12.2021 20.12.2022
dated 11.11.2021 1/East/2022
dated 15.11.22B. OIA No.131 dated 28th April, 2023
S. OI Relevant Appeal Last date Date of Date of
No A period and No. of filing of online physical
. No. OIO appeal filing filing
against
which
appeal
filed
1. 131 May 2020 349/GST/ 12.11.202 12.12.2022 20.12.2022
OIO dated Appeal- 2
12.08.2022 1/East/20
22C. OIA No. 132 dated 28th April, 2023
S. OI Relevant Appeal Last date Date of Date of
No A period and No. of filing of online physical
. No. OIO appeal filing filing
against
which
appeal
filedSignature Not Verified
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1. 132 April 2020 350/GST/ 30.09.202 12.12.2022 20.12.2022
OIO dated Appeal- 2
30.06.2022 1/East/20
22
4. The said appeals against the respective Orders in Original were
rejected by the ld. Additional Commissioner, CGST-Respondent No. 2, on
the ground of being barred by limitation. The Respondent No. 2 considered
the date of physical filing as the official filing date, disregarding the date of
online filing, which was within the prescribed limitation period. The
principal contention in this writ petition is that Respondent No. 2/Appellate
Authority has erred in dismissing the application on the grounds of delay, as
the appeals in OIA No. 105-115 and OIA No. 131 were filed within the
prescribed limitation period. Consequently, the key question to be
determined is whether the appeals were indeed filed within the limitation
period in accordance with the relevant sections and rules or not?
5. The refund applications were filed under Section 54 of the CGST Act,
2017 and the Order in Original was passed under Section 54(7) of the CGST
Act, 2017. Such orders are appealable to the Appellate Authority i.e.,
Respondent No. 2 – Additional Commissioner, CGST, under Section 107 of
CGST Act, 2017. For the present purposes Section 107(1), Section 107(4)
from CGST Act, 2017 are relevant and are set out below:
“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.
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xxxx
(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”
6. As per Section 107(1) and Section 107(4) of the CGST Act, 2017, the
total period available to the Assessee for preferring an appeal is three months
plus one month. The other relevant provisions on limitation in the present
case would be Rule 108 of CGST Rules, 2017 (both pre and post
amendment). Rule 108 of the CGST Rules, 2017 provides for the manner in
which the Appeal to the Appellate Authority is to be filed. It provides for the
appeal to be filed in FORM GST APL-1 along with the relevant documents
either electronically or otherwise.
7. Rule 108 was initially enacted as part of the CGST Rules, 2017 and
the same was amended with effect from 26th December, 2022. Both the pre
and post amendment rule are relevant and are set out below:
Provision Pre-amendment
“Rule 108 – Appeal to the Appellate Authority
(1) An appeal to the Appellate Authority under sub-
section (1) of section 107 shall be filed in FORM GST
APL-01, along with the relevant documents, either
electronically or otherwise as may be notified by the
Commissioner, and a provisional acknowledgement
shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification
as contained in FORM GST APL-01 shall be signed in
the manner specified in rule 26.
(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
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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”.
Provision Post-amendment
“Rule 108 – Appeal to the Appellate Authority
(1) An appeal to the Appellate Authority under sub-
section (1) of section 107 shall be filed in FORM GST
APL-01, along with the relevant documents, either
electronically or otherwise as may be notified by the
Commissioner, and a provisional acknowledgement
shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification
as contained in FORM GST APL-01 shall be signed in
the manner specified in rule 26.
(3) Where the decision or order appealed against is
uploaded on the common portal, a final
acknowledgment, indicating appeal number, shall be
issued in FORM GST APL-02 by the Appellate
Authority or an officer authorised by him in this behalf
and the date of issue of the provisional
acknowledgment 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, theSignature Not Verified
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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
acknowledgment, indicating appeal number, shall be
issued in FORM GST APL-02 by the Appellate
Authority or an officer authorised by him in this
behalf, and the date of issue of the provisional
acknowledgment shall be considered as the date of
filing of appeal:
Provided further that where the said self-certified copy
of the decision or order is not submitted within a period
of seven days from the date of filing of FORM GST
APL-01, the date of submission of such copy shall be
considered as the date of filing of appeal”
8. As per pre-amended Rule 108 of CGST Rules, the appeal could be
filed either electronically or otherwise. Upon filing of the appeal, along with
relevant documents, provisional acknowledgement was to be issued.
Thereafter, under Rule 108(3) of CGST Rules, certified copy of the decision
could be filed within seven days of the filing of the appeal, upon which the
final acknowledgement indicating the appeal no. would be issued for all
practical purposes. However, subject to the condition that certified copy is
filed within seven days, the date of issuance of provisional acknowledgement
was the date of filing of the appeal. If the certified copy of the decision or
order was filed after seven days, then the date of filing of the appeal would
be the date of filing of the physical copy.
9. These rules were amended as on 26th December, 2022 and as per the
amended Rule 108 of CGST Rules, the provisional acknowledgement was
issued in the same manner as was being done in the pre-amendment.
However, post amendment, the decision or order appealed could be uploaded
on the common portal upon which the appeal number would be issued by the
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Appellate Authority. This date, when the order is uploaded on the common
portal, was to be considered as the date of filing of the appeal. If the order
was not uploaded on the common portal, the self-certified copy could be filed
within seven days from the date of filing of the final form and final
acknowledgement would be issued. Subject to the condition that the self-
certified copy is filed within seven days, the date of issuance of provisional
acknowledgement was to be the date of filing of the appeal. If the self-
certified copy was submitted after seven days, then the date on which self-
certified copy was filed, would be the date of filing of the appeal.
10. A perusal of the both these rules reveals that either pre-amendment or
post-amendment, the appeal could be filed electronically. The filing of the
certified copy of the order or the self-certified copy of the order was for the
purpose of ensuring that the copy of the order, which is filed, is of reliable
nature.
11. The question is whether the appeals were filed within the time period
in terms of Rule 108 or not and if filed with a delay, does it merit
condonation. In the present case, the date of online filing in respect of all
orders except order-in-appeal No. 132 are within the statutory period which
is prescribed i.e., within 4 months. The delay is in the physical filing.
12. The question is as to whether the said delay can be condoned or not.
Ld. Counsel for the Petitioner has relied upon the following decisions to
contend that the various High Courts, pre-amendment, have condoned delays
of a similar nature on the ground that the requirement of physical filing was
merely a ‘procedural requirement’.
Signature Not Verified Digitally Signed W.P.(C) 1062/2024 Page 8 of 15 By:RAHUL Signing Date:25.12.2024 14:36:49 Pre Amendment judgements High Court Cases Orissa High Court M/s Atlas PVC Pipes Ltd. v. State of Odisha & Ors. 2022 (7) TMI 130-Orissa High Court WP(C) No. 14163/2022 Madras High Court M/s PKV Agencies v. Appellate Deputy Commissions (GST) (Appeals) 2023 (2) TMI 932-Madras High Court.
13. The Ld. Orissa High Court in its judgement dated 29th June 2022 in
M/s Atlas PVC Pipes Ltd. (supra) in a similar appeal, deciding in favour of
the assessee observed as under:
“6.11. Investigating further into the instant matter,
this Court finds that Rule 108(3) has not prescribed for
condonation of delay in the event where the petitioner
would fail to submit certified copy of the order
impugned in the appeal nor is there any provision
restricting application of Section 5 of the Limitation
Act 1963, in the context of supply of certified copy
within period stipulated in sub-rule(3) ibid.
6.12. The requirement to furnish certified copy of the
impugned order within seven days of filing of appeal is
provided as a procedural requirement.
6.13.On the altar of default in compliance of such a
procedural requirement, merit of the matter in appeal
should not have been sacrificed. Since the petitioner
has enclosed the copy of impugned order as made
available to it in the GST portal while filing the Memo
of Appeal, non-submission of certified copy, as hasSignature Not Verified
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rightly been conceded by the Additional Standing
Counsel appearing on behalf of CT&GST
Organisation, is to be treated as mere technical
defect.”
14. The ld. Counsel for the Petitioner has also relied upon the following
decisions, to contend that, post-amendment, such delay has been condoned
on the ground that the requirement for physical filing has been eliminated by
the amendment dated 26th December 2022.
Post Amendment judgements
High Court Cases
Punjab and Haryana M/s Star Health and Allied Insurance Company
High Court Ltd. v. State of Haryana and Ors. 2024 (2) TMI
591-P&H High Court.
Punjab and Haryana M/s Suman Industries v. State of Haryana 2023 (2)
High Court TMI 1261
Punjab and High Oaknorth (India) Pvt. Ltd. v. Union of India & Ors.
Court 2023 (9) TMI 781-P&H High Court.
15. The Punjab and Haryana High Court in its judgement dated 27th
February 2023 in CWP 3602/2023 titled as ‘Suman Industries v. State of
Haryana‘, interpreting the corresponding amendment in Haryana GST rules,
2017 observed, that the amendment in effect eliminates the requirement for
filing a certified copy of the decision/order while filing an appeal. The
relevant paragraphs read as under
“Learned State counsel has handed over a copy of
memo dated 24.02.2023 wherein Sub Rule (3) of RuleSignature Not Verified
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Signing Date:25.12.2024
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108 of the HGST Rules, 2017 has been amended, vide
notification dated 25.01.2023 w.e.f 26.12.2022. Before
amendment, sub Rule (3) of Rule 108 of the HGST Rules,
2017, read as under-
“(3) A certified copy of the decision or order
appealed against shall be submitted within seven
days of filling 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 filling of the appeal shall be the
date of the submission of such copy”
After amendment, the amended rule is reproduced as
under-
“(3) Where the decision or order appealed
against is uploaded on the common portal, a
final acknowledgment, indicating appeal
number, shall be issued in FORM GST APL-02
by the Appellate Authority or an officer
authorised by him in this behalf and the date of
issue of the provisional acknowledgment shall
be considered as the date of filling 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
acknowledgment, indicating appeal number,
shall be issued in FORM GST APL 02 by theSignature Not Verified
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Appellate Authority or an officer authorised by
him in this behalf, and the date of issue of the
provisional acknowledgment shall be
considered as the date of filing of appeal:
Provided further that where the said self-
certified copy of the decision or order is not
submitted within a period of seven days from the
date of filing of FORM GST APL-01, the date of
submission of such copy shall be considered as
the date of filing of appeal.
Now, the provision of submitting certified copy
of the decision or order appealed against has
been done away with. The amended rules have
also been reiterated to First Appellate
Authorities vide letter no.152/GST-II, dated
24.02.2023.”
Keeping in view the fact that now the provision of
certified copy of the decision or order appealed has
now been done away with, as per memo dated
24.02.2023 and this memo has been reiterated to the
First Appellate Authorities, the present petition is also
allowed and order dated 30.01.2023 (Annexure P-4) is
set aside. A direction is given to the Appellate Authority
to decide the appeal on merits, expeditiously, after
taking into consideration the photocopy of the
impugned order.”
16. Ld. Counsel also relies upon Hitachi Energy India Ltd. v. State of
Karnataka & Ors 2024(7) TMI 53 in which the Karnataka High Court has
recognised that the amendment to rule 108, being clarificatory in nature,
shall be retrospectively applicable. The relevant paragraphs in Hitachi
(supra) are read as under:
“7. Though appeal was filed prior to substitution of Rule
108 (3), in the present case, the matter having been
decided after the amendment by way of substitution, the
amended Rule wherein Rule 108 (3) ought to be takenSignature Not Verified
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note of. Further, it must be noticed that the substitution
of sub-rule (3) ought to date back from the date when
the Rule was introduced.
8. The substituted provision is in the nature of
clarification.
In the Minutes of 48th GST Council held on
17.12.2022, it was held as follows:-
“8.6.19 Law Committee accordingly
recommended that to provide clarity on the
requirement of submission of certified copy of the
order appealed against and the issuance of final
acknowledgement by the appellate authority, an
amendment might be made in sub-rule (3) of Rule
108 and in Rule 109 of the CGST rules, 2017 and
Form GST APL-02. The details of the same are
provided in the agenda note.
The Council agreed with the recommendation of
the Law Committee.”
9. In light of the same, it is clear, that substitution was
to provide clarity on the requirement of submission of
certified copy of the order. If that were to be so, the
substitution in order to clarify would have
retrospective effect and accordingly, the substituted
Rule ought to apply in the case of petitioner as well.”
17. Based on the above judgements, the submission being made on behalf
of the Petitioner is that the amendment dated 26th December 2022 which
was made in Rule 108 shows that the said amendment was merely
clarificatory in nature. It was merely clarifying the rule as it existed and,
therefore, the benefit of online filing along with the electronic copy of the
decision ought to be considered as sufficiently within the limitation period.
The ld. Counsel has also relied upon the observations made in Hitachi
(supra) to argue that since the substitution was to merely provide clarity to
the requirement of submission of the certified copy of the order which is a
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procedural requirement, the Appellant cannot be non-suited on the ground of
limitation.
18. This Court had issued notice on 16th December, 2024 and Mr. Aditya
Singla, ld. Counsel had accepted notice. He submitted on behalf of the
Department that in this case clearly, the benefit of the amended rule ought
not to be extended to the Petitioner as there was a clear delay in the filing of
the physical certified copy of the order.
19. A perusal of the amended rule and the decisions which have been cited
hereinabove make it clear that the condition to physically file the certified
copy of the impugned decision/order is not mandatory. Therefore, an appeal
filed prior to the amendment, where the certified copy was submitted with a
delay, may be condoned if the online filing was completed within the
prescribed limitation period. Ultimately, what is to be borne in mind is the
fact that online filing was within limitation. There is no doubt being raised
as to the genuineness of the copy of the order, which has been filed.
20. Under such circumstances, merely because the physical submission of
the appeal and the order was much later, when the online filing was within
the prescribed time, cannot deprive the Petitioner of hearing on merits. In
most Courts and Tribunals, online filing and electronic filing is now
prescribed mode and the Courts are moving towards technologically advance
systems. It would be retrograde to opine that online filing, which was
complete in all respects, including electronic copy of the order, is not valid
filing.
21. In view thereof, the writ petition is partly allowed insofar as the OIA
No.105-115 dated 18th April, 2023 and OIA No.131 dated 28th April, 2023.
22. The said appeals are remitted back to the Appellate Authority for
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being considered on merits.
23. Insofar as OIA No. 132 is concerned, the online filing is also beyond
the statutory prescribed period. Therefore, the writ petition is rejected,
insofar as OIA No.132 is concerned.
24. Since there has been a substantial delay in the physical filing, though,
the Court is extending the benefit of online filing to the Petitioner, let a lump
sum amount of Rs.25,000/- be deposited as costs by the Petitioner with the
Delhi High Court Legal Services Committee subject to which the Appellate
Authority shall consider the appeals qua OIA 105-115 & OIA 131 on merits.
25. Let this order be communicated to the concerned Appellate Authority
by Mr. Singla, Ld. Counsel for necessary information and compliance.
26. The petition is disposed of in above terms. Pending Application(s), if
any, are also disposed of.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
DECEMBER 20, 2024
dj/am
(corrected & released on 24th December, 2024)
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