CAN SMR AUTHORITY MONITOR THE ADJUDICATION ORDER?, Goods and Services Tax - GST

[Sadanand Bulbule]

Dear experts

1] The adjudication process under Section 73 or 74 of the CGST Act is supposed to be concluded by not only the authorised Proper Officer but also by an independent authority. It means, such Proper Officer is legally not to be influenced by the higher authorities in any manner so that such adjudication order is passed in a free and fair manner.

2] However in some States, there are official instructions via Circular to monitor the adjudication process by the Revisional authority appointed under Section 108 of the CGST Act. And only after the "green signal" by such revisional authority, adjudication orders see the sunlight. In case there is " red signal", no orders would come out so easily. Surprisingly such monitoring system instead of boosting the legality of the adjudication process/revenue under Section 73 or 74, there is strong apprehension of generating force on the Proper Officers to saddle tax liability without caring for the legal consequences.

3] The vital question here is, can the revisional authority under Section 108 be authorised to officially monitor the adjudication process/orders/decisions and direct the Proper Officer to conclude the adjudication under Section 73/74 in a specific wishful manner?

4]. Can such administrative instructions over-rule the statutory provisions/judicial rulings?

5] What is the settled legal position on this situation?

I am of the considered opinion that, the revisional authority is not supposed to see the adjudication process, much less monitoring it.

Experts to throw light on this.

Posts / Replies

[Sadanand Bulbule]

Dear all

I wish to add here that:

‘Adjudication process’ cannot be a rubber stamping of the opinion already formed by a higher authority under Section 108, who monitors it. The Proper Officer who is supposed to write down his minimum reasons to pass adjudication process has to independently apply his own mind and not somebody's mind. It should not be a mechanical order to create unsustainable demand. It must be apparent that the Proper Officer penning the reasons has applied his mind to the material facts available on record and has, on that material facts, arrived at his judicious decision. Application of his mind to the facts must be discernible and not out of fear of administrative action.

The second question that arises here is, if the authority appointed under Section 108 officially monitors the adjudication process under Section 73/74, then later-on how can he take up such cases for revision under Section 108 on the ground that such order is erroneous and prejudicial to the interest of revenue, which is a product emerged on his "green signal? Or will not lead to freezing the object of Section 108 itself?

Experts to consider this implication while responding.