Section -107 read with Rule 108 deals with the Appeals to the Appellate Authority where it facilitates tax payer or the department that may appeal against any decision or order passed by an adjudicating authority under the proposed Act or State Goods and Services Tax Act or the Union Territory Goods and Service Tax Act within three months or Six months respectively. The section provides for a pre-deposit of 10 percent for admittance of the appeal filed by the tax payer and grant of automatic stay on the remaining amount.
Now as per Rule 108 which can be read as under:
(1) An appeal to the Appellate Authority under sub-section (1) of secton107 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 acknowledgement, indicating appeal number shall be issued
thereafter in Form GST APL-02 by the Appellate Authority or an officer authorized 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.
and because of the above mentioned sub rule 3 of Rule 108 it was mandatory for the tax payer to submit the certified copy of decision or order appealed against with in seven days from the date of filing the appeal u/s 107, and thus it becomes the ground for rejection of appeals in several cases and therefore vide Notification No. 26/2022-Central Tax Dated 26.12.2022 sub rule 3 was substituted as:
(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, the appellant shall submit a self certified copy of the said decision or order within à period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgement, 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 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.
Thus, in view of the substitution of sub-rule an Appeal u/s 107 can not be rejected on the grounds of mere non submission of physical copy of order.
However, in case of Rama Shanker Modi vs the Assistant Commissioner, Central Goods And Service Tax and Central Excise (WPA 15639 of 2023 July,20,2023) Hon'ble Calcutta High Court had also set aside the impugned order and held that mere non filing of order physically within the time limit cannot be a valid ground to rejection of appeal.
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