Facts of the Case

The petitioner challenged an order dated 16th December 2023 passed by the Assistant Commissioner of State Tax under Section 73 of the CGST/OGST Act, 2017 for tax periods April 2019 to March 2020, which was affirmed in appeal on 30th August 2025. Since the second-tier remedy of appeal under Section 112 to the GST Appellate Tribunal (GSTAT) was, at the relevant time, not available because the Tribunal had not been constituted and made functional, the petitioner approached the High Court directly, contending it could not be left remediless.

Issues Involved

  1. Whether a writ petition against an order-in-appeal under the GST Act is maintainable, or should be entertained, where the statutory second appeal to the GSTAT lies but the Tribunal has not yet been constituted.
  2. Whether the mandatory pre-deposit under Section 112(8) of the GST Act must still be complied with even though the Tribunal was not functional at the time of filing.

Petitioner's Arguments

  • Since the GSTAT has not been constituted and made functional, the statutory remedy of second appeal under Section 112 is not actually available, and the petitioner cannot be rendered remediless.

Respondent's Arguments

  • The non-constitution of the GSTAT does not absolve the aggrieved person from complying with the mandate under Section 112(8), which bars filing of an appeal unless the admitted tax, interest, fine, fee and penalty are paid in full, along with 10% of the remaining disputed tax (subject to a cap of Rs.20 crore).

Court Order / Findings

  • It is well settled that a writ court can be approached where the forum of appeal provided by statute is not functional, so as not to render a person remediless; equally, where conditions such as pre-deposit are attached to that appeal, the writ court must ensure strict compliance rather than allow the taxpayer to bypass the statutory safeguard.
  • The Government had, by notification dated 17th September 2025 under Section 112(1), prescribed 30th June 2026 as the outer date for filing appeals before the GSTAT (for orders communicated before 1st April 2026), with a staggered filing schedule issued through a 'User Advisory for the GSTAT E-Filing Portal' based on the date of the first appeal (APL-01/APL-03) or revisional notice.
  • Since the GSTAT had by then been made functional and a structured filing window provided, it was not proper for the writ court to keep the matter pending; the petitioner was directed to deposit the amount required under Section 112(8) (if not already deposited) and file the appeal within the staggered timeline specified in the GSTAT e-filing advisory.
  • The Court expressly clarified that it had not expressed any opinion on the merits of the First Appellate Order.

Important Clarification

  • Non-constitution of the GST Appellate Tribunal justifies a writ court entertaining a challenge to an order-in-appeal only to the extent of ensuring the taxpayer is not left remediless; it does not dispense with the mandatory pre-deposit under Section 112(8), and once the GSTAT becomes functional with a notified filing window, the writ court will relegate the taxpayer to that forum rather than decide the underlying tax dispute itself.
  • Taxpayers whose appellate remedy was earlier blocked by the GSTAT's non-constitution should track the staggered GSTAT e-filing timeline (keyed to the date of their first appeal/revisional notice) rather than assume an open-ended right to approach the High Court.

Sections Involved

  • Section 73, CGST/OGST Act, 2017 -- determination of tax not paid, other than by reason of fraud.
  • Section 112, CGST Act, 2017 -- appeal to the Goods and Services Tax Appellate Tribunal, including the mandatory pre-deposit under sub-section (8).
  • Notification No. S.O. 4220(E) dated 17th September 2025 -- prescribing timelines for filing appeals before the GSTAT.

Decision – In Favour of

Disposed of with directions; not decided on merits -- the petitioner was directed to comply with Section 112(8) pre-deposit and file the second appeal before the now-functional GSTAT within the notified timeline.

Case Details

High Court of Orissa at Cuttack; W.P.(C) No.30892 of 2025; Coram: Chief Justice Harish Tandon and Justice Murahari Sri Raman; Order dated 04.12.2025.

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