Bombay High Court
BA Continuum India Pvt LtdversusState of Maharashtra
- Decided
- Disposal
- DISPOSED OFF
Holding
The appellate authority cannot dismiss an appeal for non‑prosecution; the dismissal order is set aside and the appeal remanded for a merits‑based decision.
Summary
BA Continuum India Pvt. Ltd. filed a refund application which was rejected, and subsequently appealed before the GST Appellate Authority. The appellant failed to appear at three scheduled hearings, leading the Appellate Authority to dismiss the appeal for non‑attendance. The petitioner challenged this dismissal in the Bombay High Court, contending that Section 107(11) and (12) of the Central Goods and Services Tax Act require the appeal to be decided on its merits and to be supported by a reasoned order. Relying on precedents such as Arval India Private Ltd. v. Union of India, Balaji Steel Re‑rolling Mill, and ASP Traders v. State of Uttar Pradesh, the Court held that the appellate authority lacks power to dismiss an appeal for want of prosecution. Consequently, the impugned order was set aside and the appeal remanded to the Appellate Authority for a merits‑based decision. The petition was allowed and the matter was disposed of accordingly.
Issues considered
- Whether the GST Appellate Authority can dismiss an appeal under Section 107 of the CGST Act for non‑appearance or non‑prosecution of the appellant.
- Whether the dismissal order complied with the requirement of a reasoned order under Section 107(12) of the CGST Act.
- Whether the petitioner is entitled to a merits‑based determination of the refund appeal.
Legislation cited
- Central Excise Act, 1944 — s. 35-C
- Central Goods and Services Tax Act, 2017 — s. 107(11), 107(12), 129(3), 73, 74
Subjects
- GST
- refund
- appeal
- Section 107
- non‑prosecution
- reasoned order
- appellate authority
- natural justice
- tax law
Judgment
21-WP-3598-2026.doc
PURTI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASAD
PARAB ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
PURTI PRASAD
PARAB
Date: 2026.09.03
18:37:58 +0530
WRIT PETITION NO. 3598 OF 2026
BA Continuum India Pvt. Ltd.
5th, 6th, 7th and 11th Floor, Wing A & B,
Prism Tower, Malad West, Mumbai,
Mumbai Suburban, Maharashtra – 400 072. … Petitioner
Versus
1. State of Maharashtra
through the Secretary to the Government,
Revenue Department, Mantralaya,
Mumbai – 400 032, Maharashtra.
2. The Commissioner of State Tax,
Maharashtra, Goods and Services Tax
Department, GST Bhavan, Mazgaon,
Mumbai – 400 010.
3. The Deputy Commissioner of
State Tax, Malad West 502, Maharashtra,
5th Floor, GST Bhavan, Mazgaon,
Mumbai – 400 010. ... Respondents
__________________________
Mr. Prasad Paranjape a/w Ms. Bhavya Varma i/b Lumiere Law Partners for
the Petitioner.
Mr. Himanshu Takke, AGP for the Respondents – State.
__________________________
CORAM : M. S. KARNIK AND
SANDESH D. PATIL, JJ.
DATED : 31st AUGUST, 2026.
ORAL ORDER : (PER M.S. KARNIK, J.)
1. Heard learned Counsel for the Petitioner. The Application for
refund was made by the Petitioner before the original Authority. The
Application was rejected. After that an Appeal came to be filed before the
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Appellate Authority. The Petitioner did not remain present and therefore in
view of the following discussion and conclusion which is reproduced
hereinbelow, the Appeal was rejected.
Discussion and Conclusion :
On bare perusal of the facts involved in the case it is seen that,
despite issuing hearing notices on three occasions and giving
substantial time, appellant failed to appear and substantiate his
grounds of appeal. Non-attendance and negligence on the part of
appellant shows that he is not interested in pursing his appeal.
In view of the above, I am constrained to conclude that, no
purpose will be served by keeping the present appeal pending and
giving appellant any further opportunity of hearing. Therefore,
considering the fact of non-attendance and non-compliance it is
decided to reject the appeal filed by the appellant.
In view of the above, I proceed to pass the order as follows.
ORDER
The appeal petition bearing ARN : AD2705220183187 against
refund order No.ZD270122039328K Dt. 14/01/2022 is decided on
merit and appeal filed by the appellant is dismissed/rejected for
non-attendance and non-compliance.
The demand order passed by the proper office is hereby
confirmed in appeal. The proper officer hereby directed to
proceed as per provision of law.
2. Learned Counsel for the Petitioner submitted that it was a
genuine mistake on the part of the Petitioner in not remaining present for
the hearing and they should have remained present before the Appellate
Authority. It is further submitted that in any case under the provisions of
Section 107(11) and (12) of the Central Goods and Services Tax Act, 2017
Purti Parab 2/8
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(“the CGST Act”) the Appeal should have been decided on merits. Section
107(11) and (12) of the CGST Act reads thus :
Section 107 (11) : The Appellate Authority shall, after making
such further inquiry as may be necessary, pass such order, as it
thinks just and proper, confirming, modifying or annulling the
decision or order appealed against but shall not refer the case back
to the Adjudicating Authority that passed the said decision or
order:
Provided that an order enhancing any fee or penalty or fine in lieu
of confiscation or confiscating goods of greater value or reducing
the amount of refund or input tax credit shall not be passed unless
the appellant has been given a reasonable opportunity of showing
cause against the proposed order:
Provided further that where the Appellate Authority is of the
opinion that any tax has not been paid or short-paid or
erroneously refunded, or where input tax credit has been wrongly
availed or utilised, no order requiring the appellant to pay such
tax or input tax credit shall be passed unless the appellant is given
notice to show cause against the proposed order and the order is
passed within the time limit specified under Section 73 or Section
74.
Section 107 (12) : The order of the Appellate Authority disposing
of the appeal shall be in writing and shall state the points for
determination, the decision thereon and the reasons for such
decision.
3. Learned AGP while opposing the Petition submitted that since
the Petitioner did not present himself, the Appellate Authority had no
option but to dismiss the Appeal as it is obvious that the Petitioner was not
Purti Parab 3/8
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interested in prosecuting the case. Learned AGP supported the impugned
order.
4. We are of the opinion that the impugned order calls for
interference. Reliance is placed by learned Counsel for the Petitioner in
case of Arval India Private Ltd. vs. Union of India and Others 1 decided by
the High Court of Punjab and Haryana vide judgment dated 25th
September, 2025 in support. The relevant portion of the judgment dated
25th September, 2025 decided in Arval India Private Ltd. vs. Union of India
and Others reads thus :-
5. Issue raised for adjudication in this writ petition is as to
whether appellate authority has jurisdiction to dismiss an appeal
filed under Section 107 of CGST/HGST Act, in default and for non-
prosecution. At this juncture, it is useful to refer to judgment of
Hon'ble the Supreme Court in Balaji Steel Re-rolling Mill's case
(supra), wherein question for consideration was as to whether
"Customs, Excise and Service Tax Appellate Tribunal had the power
to dismiss the appeal for want of prosecution or not". Hon'ble the
Supreme Court after referring to Section 35-C of Central Excise
Act, 1944 as well as Rule 20 of the Customs Excise and Service Tax
Appellate Tribunal (Procedure) Rules, 1982, held that the Tribunal
did not have any power to dismiss the appeal in default or for want
of prosecution in case, appellant was not present/not represented
when appeal is taken up for hearing. Section 107(11) of CGST Act
is indeed analogous with Section 35-C of Central Excise Act.
Section 35-C and Section 107(11) of CGST Act read as under:-
1 CWP No.24183 of 2025
Purti Parab 4/8
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35-C. Orders of Appellate Section 107. Appeals to
Tribunal.- Appellate Authority-
(1) The Appellate Tribunal (11) The Appellate Authority
may, after giving the parties to shall, after making such further
the appeal an opportunity of inquiry as may be necessary, pass
being heard, pass such orders such order, as it thinks just and
thereon as it thinks fit, proper, confirming, modifying or
confirming, modifying or annulling the decision or order
annulling the decision or order appealed against but shall not
appealed against or may refer refer the case back to the
the case back to the authority adjudicating authority that
which passed such decision or passed the said decision or order:
order with such directions as
Provided that an order enhancing
the Appellate Tribunal may
any fee or penalty or fine in lieu
think fit, for a fresh
of confiscation or confiscating
adjudication or decision, as
goods of greater value or
the case may be, after taking
reducing the amount of refund or
additional evidence, if
input tax credit shall not be
necessary.
passed unless the appellant has
been given a reasonable
opportunity of showing cause
against the proposed order.
Provided further that where the
Appellate Authority is of the
opinion that any tax has not been
paid or short-paid or erroneously
refunded, or where input tax
credit has been wrongly availed
or utilised, no order requiring the
appellant to pay such tax or
input tax credit shall be passed
Purti Parab 5/8
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unless the appellant is given
notice to show cause against the
proposed order and the order is
passed within the time limit
specified under Section 73 or
Section 74.
6. Division Bench of Patna High Court in Purshottam Store's case
(supra) held that Appellate Authority is statutorily obliged to
dispose of an appeal on merits as this is the specific mandate under
Section 107 CGST Act Co-ordinate Bench of this Court in M/s Parle
Biscuits Pvt. Ltd. Rudrapur, Uttrakhand vs. State of Haryana and
others, 2024-VIL-1330-P&H, Neutral Citation: 2024: PHHC:
158627-DB, has also held that it is binding upon Appellate
Authority to have examined the case on merits rather than dismiss
it for non-prosecution.
7. A bare reading of Section 107 makes it apparent that
Appellate Authority is enjoined upon, after making such further
inquiry as may be necessary, to pass an order as it may think just
and proper, either confirming, modifying or annulling the decision
or order appealed against. Therefore, dismissal of appeal for non-
prosecution is not an option available on non-appearance of
appellant. In the given factual matrix, order dated 28.10.2024 is
not sustainable.
8. Keeping in view the facts and circumstances as above, order
dated 08.03.2025 (Annexure P-1) is set aside and matter
remitted/remanded to Appellate Authority, to decide the same on
merits in accordance with law. It is agreed that parties shall appear
before Appellate Authority on 18.10.2025.
Purti Parab 6/8
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5. It is very significant to refer to the decision of the Hon’ble
Supreme Court in ASP Traders vs. State of Uttar Pradesh and Ors. 2, the
relevant portion reads thus :-
32. The principles of natural justice mandate that when a
taxpayer submits a response to a show-cause notice, the
adjudicating authority is required to consider such response and
render a reasoned, speaking order. This is not a mere procedural
formality, but a substantive safeguard ensuring fairness in quasi-
judicial proceedings. The right to appeal under Section 107 of the
CGST Act, 2017, is predicated upon the existence of a formal
adjudication. An appeal can lie only against an ‘order’, and in the
absence of a reasoned order passed under Section 129(3) of the
Act, the taxpayer is effectively deprived of the statutory remedy of
appeal. Such a deprivation undermines the foundational principles
of fairness, due process, and access to justice, rendering the right
of appeal illusory or nugatory. It is now settled law that failure to
issue a speaking order in response to a show-cause notice creates a
legal vacuum. Any consequential action including imposition of
tax or penalty, would then be unsupported by authority of law,
thereby potentially violating Article 265 of the Constitution of
India, which prohibits the levy or collection of tax except by
authority of law.
6. We are in respectful agreement with the view taken by their
Lordships in Arval India Private Ltd. vs. Union of India and Others (supra).
By the impugned order, the Appeal was dismissed for non prosecution in
view of the absence of the Petitioner, when the provision required the
Appeal to be decided on merits in accordance with law. Moreover, the
impugned order is not a reasoned order.
2 (2026) 2 SCC 641
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7. The present Petition is therefore allowed. The impugned
order is quashed and set aside. The Appeal is remanded to the Appellate
Authority. The Appellate Authority to hear the Appeal of the Petitioner on
its own merits and in accordance with law.
8. Learned Counsel for the Petitioner submits that the Petitioner
shall remain present before the Appellate Authority on 8th September, 2026
at 11.00 a.m. and shall co-operate with the Appellate Authority. After the
Petitioner appears it is open for the Appellate Authority to fix the schedule
of hearing as per its convenience. All contentions on merits are kept open.
9. The Writ Petition stands disposed of.
(SANDESH D. PATIL, J.) (M. S. KARNIK, J.)
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