[Cites 7, Cited by 0]
Gujarat High Court
M/S R P Chemicals Through Partner ... vs Superintendent Cgst And Central Excise on 16 January, 2026
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15136 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
==========================================================
Approved for Reporting Yes No
==========================================================
M/S R P CHEMICALS THROUGH PARTNER ATULKUMAR JIVANLAL
PADIA
Versus
SUPERINTENDENT CGST AND CENTRAL EXCISE & ANR.
==========================================================
Appearance:
MR. HARDIK V VORA(7123) for the Petitioner(s) No. 1
MS HETVI H SANCHETI(5618) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 16/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Since a short issue is involved, with consent of learned advocates
for the respective parties, the matter is taken up for final hearing.
RULE. Learned Senior Standing Counsel Ms. Hetvi H. Sancheti
waives service of notice of rule on behalf of the respondents.
2. By way of this writ petition, the petitioner- Company is assailing the
order-in-original bearing No.03/RANGE-III/Div-XI/ZGM/Adj./2023-24
dated 09.01.2024 along with summary order in Form DRC-07 bearing
reference No. ZD240424023537L dated 15.04.2024 passed by the
respondent no.1 under Section 74(1) of the Central Goods and Service
Tax Act, 2017 (for short "CGST Act") read with Gujarat Goods and
Service Tax Act, 2017 (for short "GGST") for determining the tax
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
demand of Rs.8,12,967/-, being Integrated Goods and Services Tax of
Rs.60,877/- and CGST of Rs.3,76,045/- and SGST of Rs.3,76,045/- along
with applicable interest and penalty @ 100% of tax for the period of July
2017 to March 2020 on account of availing and utilizing inadmissible
ITC on post supply discount.
BRIEF FACTS
3. The petitioner-company is a partnership firm engaged in
manufacturing and sale of Sulphides, Polysulphides, Nitric Acid
Sulphonitric Acids and Hydrogen Chloride, falling under HSN Chapter of
28 at 12, Vaibhav Park Society, Near Cadila Bridge, Near High way
Road, Ghodasar, Ahmedabad. It is registered under the provisions of GST
Act with GSTIN 24AAKFR5144A1ZK w.e..f 01.07.2017.
3.1 Form GST ADT-01 dated 27.10.2021 was issued to the petitioner
for audit of its books of accounts for the period July 2017 to March 2020
under Section 65 of the CGST Act. Thereafter, Final Audit Report No.
155/2021-22 (CGST) dated 08.04.2022 raised seven objections, of which
six were accepted and the differential tax, interest and penalty were paid.
The petitioner disputed one objection relating to non-reversal of ITC on
post-supply discounts amounting to ₹8,12,967/- (IGST ₹60,877/-, CGST
₹3,76,045/- and SGST ₹3,76,045/-) under Section 15(3) of the CGST
Act. Subsequently, Form GST DRC-01A dated 06.05.2022 was issued
demanding the said amount. The petitioner submitted a detailed reply,
furnishing particulars of suppliers and contending that the discounts were
received without levy of GST in accordance with Section 34 of the CGST
Act. Pursuant thereto, show notice bearing DIN
20221165VE0000777A80 along with Form GST DRC- 01 was issued
on 14.11.2022 by Respondent no. 1 asking the Petitioner to show cause as
to why tax amounting to Rs. 8,12,967/-, being IGST at Rs. 60,877/-.
CGST at Rs. 3,76,045/- and SGST at Rs. 3,76,045/- should not be
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
demanded and recovered along with interest and penalty on the ground
that the Petitioner was liable to reverse the said ITC aggregating to a total
of Rs. 8,12,967/-, in respect of credit notes issued by the suppliers
corresponding to post-supply discounts amounting to Rs. 45,16,484/-
received by the Petitioner during the period commencing from July 2017
to March 2020. In response to the same, petitioner filed its reply however,
without considering the same, respondent authority has passed the order
on 09.01.2024 raising a tax demand of Rs.8,12,967/- along with interest
and equal penalty.
3.2 Being aggrieved by the said order the petitioner decided to file an
appeal before the Appellate authority. However, the order was not
available on the GST Portal, which prevented the petitioner from filing
the appeal. Therefore, the petitioner submitted a written letter to the
respondent no.1 on 15.04.2024, requesting that the order be uploaded on
the portal. Subsequently, order in GST Form DRC -07 dated 15.04.2024
was uploaded. However, since the same was not visible on the GST
Portal until later, the petitioner filed a manual appeal in Form GST APL -
04 before the appellate authority on 22.04.2024 in order to comply with
the statutory period of limitation.
SUBMISSIONS ON BEHALF OF PETITIONER
4. At the outset, learned advocate Mr. Vora has submitted that there is
only delay of 13 days in preferring the appeal over and above the period
of 90 days prescribed under the provisions of 107(1) of the CGST Act. It
is thus urged that the impugned order dated 12.03.2025 passed by the
appellate authority be set aside and the matter may be remanded for
consideration on merits of the case. It is submitted that the petitioner-
company filed an appeal on 22.04.2024 before the appellate authority
challenging the order dated 09.01.2024, raising a tax demand of
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
Rs.8,12,967/- along with interest and equal penalty. It is the case of the
petitioner-company that since the factory premises were sold and
thereafter closed and the petitioner-company does not conduct any
business from the said location. Hence, the impugned order dated
09.01.2024, which was sent by post was returned undelivered and
thereafter, the petitioner was informed telephonically by the GST
Department to collect the said order. Accordingly, the Accountant of
petitioner-company Mr. Amit Mashroo, who had collected the order by
hand.
Thereafter, the petitioner-company had approached the authority
by filing an appeal and the appeal was rejected by the appellate authority
on 15.04.2024, The petitioner then addressed to respondent no.1
requesting for uploading of the summary order passed in Form DRC-07,
which was not uploaded however, it is the case of the petitioner-company
that the said order was not visible on GST portal, until later, the petitioner
filed a manual appeal in FORM GST Appeal - 04 before the appellate
authority. Ultimately, the appeal was rejected on 12.03.2025 solely on the
ground of delay.
4.1 Learned advocate Mr. Vora has submitted that due to the closure of
the business and due to inadvertent oversight in updating the address on
the GST Portal, the order sent through post remained undelivered and
thereafter, the petitioner was informed telephonically to file an appeal.
Thus, it is urged that looking to the delay of 13 days over and above the
period of 90 days and in wake of the fact that the appeal had been filed
within the additional period of 30 days over and above 90 days. It is thus
urged that the appellate order may be set aside and matter be remained
back to the authorities for fresh consideration.
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
SUBMISSIONS ON BEHALF OF RESPONDENTS
5. Per Contra, learned advocate Ms. Sancheti appearing for the
respondents has opposed the present writ petition. It is contended that the
reasons assigned by the present petitioner for failure to file appeal within
the ground of closure of business is not palatable as the petitioner was
supposed to verify through the GST Portal about the order which was
challenged before the appellate authority. Thus, it is urged that the writ
petition may be dismissed.
ANALYSIS AND OPINION
6. We have heard the learned advocates appearing for the respective
parties and perused the materials available on record.
7. It appears that there is delay of 13 days over and above the period
of 90 days in preferring the appeal filed by the present petitioner assailing
the order dated 09.01.2024, raising a tax demand of Rs.8,12,967/- along
with interest and additional penalty of the said amount. The petitioner
preferred the appeal on 22.04.2024 by filing FORM GST Appeal 04.
7.1 It is the case of the petitioner that the Order-in-Original dated
09.01.2024, was never communicated to him as the business premises
were remained closed and the petitioner could not appear in hearing
before the appellate authorities as the petitioner was not aware of the
dates. The contentions made by the petitioner with regard to the closure
of business and the same being sold in the year 2022 has not been
controverted. The petitioner was informed telephonically by the GST
Department to collect the Order-in-Original. Accordingly, the Accountant
of petitioner-company had collected the order on 25.04.2024 and filed the
appeal.
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
7.2 Section 107 (4) confers discretion to the Appellate Authority, to
allow additional one month in case he/she is satisfied that the appellant
was prevented by "sufficient cause" from presenting the appeal. The
statute, thus provides additional one month to file the appeal, and all the
reasons satisfying the expression "sufficient cause" can be raised by the
appellant, and the appellant authority is required to apply its mind on the
reasons assigned for belatedly filing the appeal i.e. beyond the period of
90 days. In case, the appellate authority is of the opinion that the delay is
appropriately explained, and the appellant has carved out "sufficient
cause", the appellate authority is authorized and empowered to condone
the delay and the appeal/application cannot be rejected on the ground of
lack of authority. The aforementioned reason assigned by the petitioner in
his application satisfies the expression "sufficient cause". We are of the
opinion that the appellate authorities should have applied the mind to the
reasons assigned for delay, as it had the discretion to condone the delay
within the period of 90 days over and above 30 days, if the appeal is filed
within additional 30 days. The additional objection/reason assigned by
the appellate authority of manual filing of the appeal is also unreasonable,
as it is always open for the appellate authority to decide the appeal, even
if the same is filed manually. Hence, the present writ petition deserves to
be allowed.
FINAL ORDER
8. Hence, the impugned orders dated 09.01.2024 along with Summary
Corder in Form DRC-07 dated 15.04.2024 as well as the Appeal order
dated 12.03.2025 in GST APL-04 are hereby quashed and set aside. The
matter is remanded to the appellate authorities for fresh consideration.
However, we clarify that the petitioner shall fully co-operate with the
NEUTRAL CITATION
C/SCA/15136/2025 JUDGMENT DATED: 16/01/2026
undefined
proceedings before the appellate authorities and shall also remain present
as and when intimated. In case, the petitioner fails to co-operate with the
appellate authority, it will be open for the appellate authorities to pass
appropriate orders in accordance with law. Rule is made absolute. No
order as to costs.
(A. S. SUPEHIA, J)
(PRANAV TRIVEDI,J)
Radhika/20
