FILING OF APPEAL BEFORE GST APPELLATE TRIBUNAL

[Mr. M. GOVINDARAJAN]

Constitution of Appellate Tribunal

Section 109 of the Central Goods and Services Tax Act, 2017 (‘Act’ for short) provides for the constitution of Appellate Tribunal.  The Government shall, on the recommendations of the Council, by notification, establish with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal (‘Appellate Tribunal’ for short)  for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority.  The Appellate Tribunal has not established since the inception of GST from 01.07.2017 despite 6 years have been lapsed. 

Now the Central Government, vide Notification No. S.O. 4073 (E), dated 14.09.2023, constituted 31 number of State Benches of the Appellate Tribunal with effect from 14.09.2023.  We may hope that the said Appellate Tribunals will function shortly.  In the absence of such tribunals the registered persons could not file appeal against the order of Commissioner (Appeals) and they are compelled to file writ petition before High Court.  The constitution of the Tribunal will give a great relief in getting their appellate remedy.  These State Appellate Tribunals shall consist 2 Judicial Members, a Technical Member (Centre) and a Technical Member (State).

Procedure of Appellate Tribunal

The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and subject to the other provisions of this Act and the rules made there under, the Appellate Tribunal shall have power to regulate its own procedure.  The Appellate Tribunal shall have the same powers of the Civil Courts while trying a civil suit in respect of the following matters-

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of documents;
•  receiving evidence on affidavits;
• subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document from any office;
• issuing commissions for the examination of witnesses or documents;
• dismissing a representation for default or deciding it ex parte;
• setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
• any other matter which may be prescribed.

All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Filing appeal before Appellate Tribunal

• Any person aggrieved by an order passed against him under-

• Section 107 - Order passed by Commissioner (Appeals);
• Section 108 - Order passed by Revisional Authority.

may file an appeal before the Appellate Tribunal.

• The appeal shall be filed in the Form GST APL - 05 on the common portal along with the relevant documents either electronically or otherwise notified by the Registrar.
• A provisional acknowledgement will be issued to the appellant.
• A certified copy of the decision or order appealed against along with fees shall be submitted to the Registrar within 7 days of the filing of the appeal.
• The fees for filing of appeal shall be Rs.1000/-  for every Rs.1 lakh  of tax or input tax credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined in the order appealed against, subject to a maximum of Rs.25000/-.
• A final acknowledgement, indicating the appeal number shall be issued thereafter in Form GST APL-02 by the Registrar.
• The appeal shall be filed within 3 months from the date of receipt of order against which the appeal is made.
• The Appellate Tribunal may admit an appeal within 3 months after the expiry of the limitation if it is satisfied that there was sufficient cause for not presenting it within that period.
• The date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said certified copy of the order is submitted after 7 days, the date of filing of the appeal shall be the date of the submission of such copy.
• The appellant is liable to pay-

• in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him, and
• a sum equal to 20% of the remaining amount of tax in dispute, in addition to the amount paid under sub-section (6) of section 107, arising from the said order subject to a maximum of Rs.50 crores in relation to which the appeal has been filed.

• Where the appellant has paid the above said amount, the recovery proceedings for the balance amount shall be deemed to be stayed till the disposal of the appeal.
• The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing.  No such adjournment shall be granted more than 3 times to a party during hearing of the appeal.
• The appellant shall not be allowed to produce before the Appellate Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or, as the case may be, the Appellate Authority except in the following circumstances-

• where the adjudicating authority or, the Appellate Authority has refused to admit evidence which ought to have been admitted; or
•  where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or the Appellate Authority; or
• where the appellant was prevented by sufficient cause from producing before the adjudicating authority or the Appellate Authority any evidence which is relevant to any ground of appeal; or
• where the adjudicating authority or the Appellate Authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

• The Appellate Tribunal may direct the production of any document, or the examination of any witness, to enable it to dispose of the appeal.

• No evidence shall be admitted unless the Appellate Tribunal records in writing the reasons for its admission.

• The Appellate Tribunal shall, as far as possible, hear and decide every appeal within a period of 1 year from the date on which it is filed.
• No amendment which has the effect of enhancing an assessment or reducing a refund or input tax credit or otherwise increasing the liability of the other party, shall be made unless the party has been given an opportunity of being heard.

Memorandum of Cross objections

On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within 45 days of the receipt of notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal, as if it were an appeal presented within the time specified.

The Appellate Tribunal may permit the filing of a memorandum of cross-objections within 45 days after the expiry of the period 45 days if it is satisfied that there was sufficient cause for not presenting it within that period.

Appeal by Department

Section  109 (3) provides that the Commissioner may, on his own motion, or upon request from the Commissioner of State tax/Union Territory Tax, call for and examine the record of any order passed by the Appellate Authority or the Revisional Authority under this Act/State Act/UT Act for the purpose of satisfying himself as to the legality or propriety of the said order and may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal within 6 months from the date on which the said order has been passed for determination of such points arising out of the said order as may be specified by the Commissioner in his order.

The authorized officer shall make an application to the Appellate Tribunal. Such application shall be dealt with by the Appellate Tribunal as if it were an appeal made against the order under sub-section (11) of section 107 or under sub-section (1) of section 108 and the provisions of this Act shall apply to such application, as they apply in relation to appeals filed under this section.

An application to the Appellate Tribunal shall be made electronically or otherwise, in Form GST APL-07, along with the relevant documents on the common portal.   A certified copy of the decision or order appealed against shall be submitted within 7 days of filing the application and an appeal number shall be generated by the Registrar.

Appearance

Any person who is entitled or required to appear before the Appellate Tribunal in connection with any proceedings under this Act, may, otherwise than when required under this Act to appear personally for examination on oath or affirmation, subject to the other provisions of this section, appear by an authorized representative, who may be-

• his relative or regular employee; or
• an advocate who is entitled to practice in any court in India, and who has not been debarred from practicing before any court in India; or
• any chartered accountant, a cost accountant or a company secretary, who holds a certificate of practice and who has not been debarred from practice; or
• a retired officer of the Commercial Tax Department of any State Government or Union territory or of the Board who, during his service under the Government, had worked in a post not below the rank than that of a Group-B Gazetted officer for a period of not less than 2 years.   Such officer shall not be entitled to appear before any proceedings under this Act for a period of 1 year from the date of his retirement or resignation.
• any person who has been authorized to act as a goods and services tax practitioner on behalf of the concerned registered person.

The following persons shall not be qualified for making appearance before Appellate Tribunal-

• who has been dismissed or removed from Government service; or
• who is convicted of an offence connected with any proceedings under-

• this Act,
• the State Goods and Services Tax Act,
• the Integrated Goods and Services Tax Act or
• the Union Territory Goods and Services Tax Act, or
•  under the existing law or under any of the Acts passed by a State Legislature dealing with the imposition of taxes on sale of goods or supply of goods or services or both; or

•  who is found guilty of misconduct by the prescribed authority;
• who has been adjudged as an insolvent.

Order

The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the Appellate Authority, or the Revisional Authority or to the original adjudicating authority, with such directions as it may think fit, for a fresh adjudication or decision after taking additional evidence, if necessary.

The Appellate Authority shall, along with its order issue a summary of the order in Form GST APL-04 clearly indicating the final amount of demand confirmed.  The jurisdictional officer shall issue a statement in Form GST APL-04 clearly indicating the final amount of demand confirmed by the Appellate Tribunal.

The Appellate Tribunal shall send a copy of every order passed under this section to the Appellate Authority or the Revisional Authority, or the original adjudicating authority, as the case may be, the appellant and the jurisdictional Commissioner or the Commissioner of State tax or the Union territory tax.

The orders passed by the Appellate Tribunal on an appeal shall be final and binding on the parties.

Execution of order

Any order made by the Appellate Tribunal may be enforced by it in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction-

• in the case of an order against a company, the registered office of the company is situated; or
• in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain.