Jem Exporter vs Union of India

Can the GST Appeal be rejected considering the Appeal is DEFECTIVE due to a lack of proper pre-deposit, and the appeal memo was not appropriately authenticated? The Bomaby High Court favours the Assessee in a Landmark ruling. Facts and Timelines: The Petitioner was engaged in the business of exporting mobile handsets he filed Refund Application for Export. Due to issues related to its ITC from allegedly non-existing dealers a SCN was issued to them proposing cancellation of Registration and recovery of ITC along with Interest and Penalty.

The Petitioner gave a reply, but his registration was cancelled. The Petitioner filed Appeal before the Commissioner (Appeals) but his Appeal was rejected stating that the pre-deposit for filing the appeal has not been made by the Petitioner and furthermore, the appeal is not signed as per Rule 26. Arrived Petitioner approached High Court. Bombay High Court directed the Petitioner to rectify the procedural defects specified in the defect memo and then the Commissioner (Appeal) will pass a fresh order disposing of the appeal on merits after considering all the submissions made, including the contention of correct procedure having not followed by the adjudicating authority.

1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

2. By this petition under Article 226 of the Constitution of India, the Petitioner has challenged the Order In Appeal (O-I-A) passed by the Commissioner of Goods and Service Tax and C Ex. [Commissioner (Appeal)], dated 17th June 2022, whereby, the Appellate Authority has upheld the order of rejection of application for revocation of cancellation of registration of the Petitioner and also has upheld Order-In-Original (O-I-O) raising a demand of Rs. 1,01,02,741/- for contravention of provisions of Section 16(2) of the CGST Act and further levy of interest under section 50 of the Act and imposition of penalty under Section 122(1) read with section 74 of the CGST Act, 2017 and section 125 of the CGST Act, 2017.

3. Narrative of the relevant events :-

(i) The Petitioner is engaged in the business of exporting mobile handsets. The Petitioner is registered under the CGST Act, 2017 as a sole proprietor.

(ii) On 10th April 2020 and 24th February 2020, the Petitioner made an application for refund of Input Tax Credit (for short “ITC”) on export of goods and services for the period February 2020 and January 2020 claiming refund of Rs. 1,01,72,874/- and Rs. 16,51,370/- respectively.

(iii) On 7th August 2020, summons under section 70 of the CGST Act was served on the Petitioner to conduct inquiry about contravention of provisions of the CGST Act and the Rules. Pursuant to the said summons, the Petitioner attended and a statement of the Petitioner was recorded.

(iv) On 25th March 2021, common notice was issued under section 74 of the CGST Act, section 74 of the Maharashtra GST Act, 2017 and section 20 of the IGST Act, 2017 to the Petitioner and IJM Exporters, a proprietorship firm of one Mr. Imran Jamal Merchant, both having same registered office address. The said show cause notice refers to the refund application made by the Petitioner. In the said show cause notice, it is alleged that IJM Exporters has availed ITC on goods purchased from non-existing entities and passed on said ITC to the Petitioner since IJM Exporters have sold the goods to the Petitioner, who has made a claim for refund of ITC on export of the goods purchased from the IJM Exporters. The Petitioner and IJM Exporters have wrongly availed the ITC and, therefore, a show-cause was issued. In the said show cause notice, the Petitioner was required to show cause why the GST registration should not be cancelled under section 29(2) of the CGST Act, 2017 and ITC amounting to Rs. 1,01,72,874/- should not be demanded along with interest and penalty.

(v) On 24th April 2021, the Petitioner replied to the aforesaid show cause notice and gave its submissions for dropping the said show cause notice on the grounds more particularly set out therein. The Petitioner stated that they have purchased the goods from IJM, who is registered with the GST Department. The goods have been purchased in accordance with invoices issued as per CGST Act and payments have been made through banking channel. Therefore, it was contended that the Petitioner is justified in claiming the refund arising from export of the goods. The Petitioner prayed that the show cause notice be dropped in the light of the submissions made therein.

(vi) On 13th August 2021, common order came to be passed against the Petitioner and the IGM Exporters confirming the demand of Rs. 1,01,02,741/- and levying interest and penalty. By the said order, the GST registration of the Petitioner was also cancelled under section 29(2)(e) of the CGST Act, 2017. Similar order was passed in the case of IJM Exporters.

(vii) Against the above order, the Petitioner filed an appeal with the Commissioner (Appeals), challenging the same on various grounds stated in the Appeal Memo.

(viii) On 17th June 2022, the office of the Commissioner (Appeals) passed a common order in the case of the Petitioner and IJM Exporters and confirmed the O-I-O by upholding the cancellation of registration of the Petitioner and also confirming the demand of duty, penalty and interest. The Appellate Authority stated that the pre-deposit for filing the appeal has not been made by the Petitioner and furthermore, the appeal is not signed as per Rule 26 and, therefore, the Appeals are liable to be rejected. The Commissioner (Appeal) observed that as per the investigation report, the persons from whom IJM Exporters had purchased the goods were non-existent and, therefore, the IJM Exporters had claimed fake ITC and since purchases of the Petitioner are from IJM Exporters, consequently the Petitioner has also wrongly availed the ITC and made a claim for refund.

4. Being aggrieved by the aforesaid order, the Petitioner has filed the present petition since so far the GST Tribunal has not been constituted and the cancellation of the registration is affecting the business of the Petitioner. It is on this backdrop that this Court has entertained the present petition.

5. Heard learned counsel for the Petitioner and learned counsel for the Respondents.

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