Hitachi Energy India LTD 19 June 24

-1-
NC: 2024:KHC:21942
WP No. 14785 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 14785 OF 2024 (T-RES)
BETWEEN:
1. M/S HITACHI ENERGY INDIA LTD

PLOT NO. 4A, 5 AND 6, 2ND STAGE,
PEENYA INDUSTRIAL AREA, PEENYA,
BENGALURU-560 058
(REPRESENTED BY ARINDAM LAHIRI
HEAD OF TAXATION)
INCORPORATION UNDER RULE 29 OF THE
COMPANIES ACT
… PETITIONER
(BY SRI. SYED M. PEERAN, ADVOCATE,
SRI ROHAN KARIA, ADVOCATE AND
Digitally SRI NISCHAL K.M., ADVOCATES)
signed by
VIDYA G R
Location: AND:
HIGH COURT
OF
KARNATAKA
1. STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY
FINANCE DEPARTMENT
VIDHANA SOUDHA
BANGALORE - 560 001
2. THE COMMISSIONER OF COMMERCIAL TAXES

VANIJYA THERIGE KARYALAYA
GANDHINAGAR
BANGALORE - 560 009
-2-
NC: 2024:KHC:21942
WP No. 14785 of 2024
3. JOINT COMMISSIONER OF COMMERCIAL TAXES

(APPEALS 6)
TTMC COMPLEX, BMTC BUILDING
SHANTHINAGAR,
BANGALORE - 560 027
4. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES

KIADB BUILDING,
PEENYA INDUSTRIAL AREA
BANGALORE - 560 058
… RESPONDENTS
(BY SRI. SHAMANTH NAIK, HCGP)
***
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF

THE CONSTITUTION OF INDIA, PRAYING TO A) QUASH THE
IMPUGNED ORDER DATED 26/12/2023 PASSED BY THE R3 IN
THE MATTER OF GST APPEAL NO. 106/2022-23 (ANNEXURE-A)
FOR THE PERIOD FEBRUARY 2020; B) DIRECT THE R3 TO
RESTORE THE GST APPEAL NO. 106/2022-23 (ANNEXURE-F)
FILED BY THE PETITIONER CHALLENGING THE REFUND
REJECTION ORDER NO. JCCT/DGSTO-06/RFD/224/LGSTO-
075/2021-22 DATED 03/03/2022 (ANNEXURE-E) PASSED BY
THE R4 AND TO ADJUDICATE THE SAME ON MERITS;
C) DIRECT R3 TO GRANT REFUND OF EXCESS TAX OF
RS.1,782/- ALONG WITH CONSEQUENTIAL INTEREST IN
TERMS OF SECTION 56 OF THE CGST ACT, 2017 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING

THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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

-4-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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)
-6-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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 the date of
issue of the provisional acknowledgement shall be
considered as the date of filing of appeal:
-7-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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."
(emphasis supplied)
6. The change effected by virtue of Rule 108(3) is
that the date of appeal would be the date of issuance of
acknowledgment (which was on 03.06.2022 at
Annexure-'G') and such change is in contradistinction to
the earlier requirement which provided that the date of
appeal would be the date of furnishing of certified copy of
the order, if submitted after seven days. If that were to
be so, the date of physical filing of the certified copy ought
not to have been taken note of.
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 taken note

-8-
NC: 2024:KHC:21942
WP No. 14785 of 2024
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

-9-
NC: 2024:KHC:21942
WP No. 14785 of 2024
substitution in order to clarify would have retrospective
effect and accordingly, the substituted Rule ought to apply
in the case of petitioner as well.
10. Accordingly, the order at Annexure-'A' dated
26.12.2023 is set aside and in light of the discussion made
hereinabove, the date of filing that was to be taken note of
is 03.06.2022 which is the date of acknowledgement of
filing of the appeal and not 25.01.2023 which was the date
of physical filing of the impugned order which was wrongly
taken by the Appellate Authority. Accordingly, as the delay
requires to be condoned and there being no ambiguity in
the position of law, the delay is condoned and the matter
is remitted for consideration afresh. All contentions are
kept open. The parties to appear before the Appellate
Authority on 08.07.2024.
Accordingly, the petition is disposed off.
Sd/-
JUDGE
VGR

Hitachi Energy India LTD 19 June 24

Uploaded by

Copyright:

Available Formats

Hitachi Energy India LTD 19 June 24

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Hitachi Energy India LTD 19 June 24

Uploaded by

Copyright:

Available Formats

-1-

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF JUNE, 2024

1. M/S HITACHI ENERGY INDIA LTD

2. THE COMMISSIONER OF COMMERCIAL TAXES

3. JOINT COMMISSIONER OF COMMERCIAL TAXES

4. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF

THIS PETITION, COMING ON FOR PRELIMINARY HEARING

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

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

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

4. The only ground which apparently has been

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

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:-

"(3) Where the decision or order appealed

Provided that where the decision or order

Provided further that where the said self-certified

6. The change effected by virtue of Rule 108(3) is

that the date of appeal would be the date of issuance of

acknowledgment (which was on 03.06.2022 at

Annexure-'G') and such change is in contradistinction to

the earlier requirement which provided that the date of

appeal would be the date of furnishing of certified copy of

the order, if submitted after seven days. If that were to

be so, the date of physical filing of the certified copy ought

not to have been taken note of.

7. Though appeal was filed prior to substitution of

Rule 108(3), in the present case, the matter having been