Appeals under GST

Appeal before Appellate Authority

Any person who thinks that the order or decision by the adjudicating authority is not as per law then such person can file an appeal to the Appellate Authority. The appeal should be filed within three months of communication of order or decision to such person.

Commissioner may at its own motion call for and examine the record of any proceedings in which an adjudicating authority has passed an order or decision. He may direct any subordinate officer to apply to the Appellate authority. The appeal should be filed within six months from the date of communication of such order or decision. In such case, such authorized officer should be considered as an appellant.

As per Section 2(4) of CGST Act, “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs, the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal;

If appellate authority is satisfied that appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.

Payment Before Appeal

When the appeal before appellate authority is made by the registered person then such appeal can be made only after the appellant has paid the tax, interest, fine, fee and penalty in the order, which has been admitted by him. The appellant is also required to pay 10% of the remaining amount of tax in dispute (maximum Rs. 25 crore) arising from the order, in relation to which appeal has been filed.

When such amount is paid by the appellant, the recovery for the balance amount shall be deemed to be stayed.

Procedure of Appeal

Such appeal is to be made in Form GST APL-01, along with relevant documents. A provisional acknowledgement will be issued immediately. Within 7 days of filing GST APL-01, a certified copy of decision or order in dispute is to be submitted and a final acknowledgment indicating appeal number shall be issued in Form GST APL-02.

Where the certified copy is submitted within 7 days of filing GST APL-01 then date of filing GST APL-01 shall be considered as date of filing appeal. If certified copy is submitted after 7 days, then date of submission of copy is considered as date of filing appeal.

When the subordinate officer of commissioner is filing appeal then he has to file such appeal in Form GST APL-03 and submit within 7 days a certified copy of the decision or order.

If any sufficient cause is shown at time of hearing then Appellate authority may grant time to parties and adjourn the hearing. The reasons are to be recorded in writing. Such adjournment may be given maximum three times to a party.

Appellate authority shall after making inquiry, pass an order as it thinks proper, confirming, annulling or modifying the decision or order. Appellate authority shall not refer the case back to adjudicating authority that passed the order or decision in dispute.

Appellant should be given proper opportunity of being heard if any order enhancing any fee or penalty or reducing the amount of refund or input tax credit is to be given.

The order disposing of the appeal shall be in writing and shall state the points for determination, decision and reasons for such decision.

A copy of order is to be communicated to the appellant, respondent and to the adjudicating authority.

Time in which appeal should be disposed off

The Appellate Authority should hear and decide every appeal within a period of one year from the date on which it is filed. The words use here is “where it is possible to do so”, therefore there is no legal binding on Appellate Authority to pass such order within one year only.

Also, where issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year.

Appellate Authority

Any person can file his appeal to

(a) the Commissioner (Appeals) where such decision or order is passed by the Additional or Joint Commissioner.

(b) [any officer not below the rank of Joint Commissioner (Appeals)] where such decision or order is passed by the Deputy or Assistant Commissioner or Superintendent.

Any officer directed by commissioner may appeal to

(a) [any officer not below the rank of Joint Commissioner (Appeals)] where such decision or order is passed by the Additional or Joint Commissioner.

(b) the Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or the Superintendent.

Appeal before Appellate Tribunal

Any person aggrieved by order passed by appellate authority under Section 107 or by revisional authority under Section 108 can file an appeal to the appellate tribunal within three months from the date of communication of such order to the person.

The appellate tribunal may admit an appeal within three months after expiry of period of three months, if it is satisfied that there was sufficient cause for not presenting it within that period.

Appellate tribunal may refuse to admit such appeal when the amount of tax, input tax credit, fine, penalty  or the difference in tax, input tax credit is up to Rs. 50,000. The word used is ‘or’. Hence, even if total demand exceeds Rs 50,000, if individual amounts are less than Rs 50,000, appeal cannot be refused.

Commissioner may at its own motion call for and examine the order of Appellate authority or revisional authority. He may direct any subordinate officer to apply to the Appellate Tribunal. The appeal should be filed within six months from the date on which order has been passed. In such case, such authorized officer should be considered as an appellant.

Payment Before Appeal

When the appeal before Appellate tribunal is made by the registered person then such appeal can be made only after the appellant has paid the tax, interest, fine, fee and penalty in the order, which has been admitted by him. The appellant is also required to pay 20% of the remaining amount of tax in dispute arising from the order, in relation to which appeal has been filed. This amount of 20% will be in addition to the amount paid at time of filing appeal before Appellate authority.

When such amount is paid by the appellant, the recovery for the balance amount shall be deemed to be stayed till the disposal of appeal.

If any sufficient cause is shown at time of hearing then Appellate authority may grant time to parties and adjourn the hearing. The reasons are to be recorded in writing. Such adjournment may be given maximum three times to a party.

Appellate tribunal after giving parties an opportunity of being heard, pass such orders as it deems fit. It can confirm, modify or annul the decision or order or may refer the case back to appellate authority, revisional authority or original adjudicating authority with such direction as it may deem fit.

Appellate authority may amend any order passed by it, so to rectify any error. The error may be noticed by its own accord, or is brought to its notice by the commissioner or the other party to the appeal within a period of three months from the order. No amendment shall be made which as the effect of enhancing an assessment or reducing a refund or input tax credit unless the party is given an opportunity of being heard.

Time in which appeal should be disposed off

The Appellate Tribunal should hear and decide every appeal within a period of one year from the date on which it is filed. The words use here is “as far as possible”, therefore there is no legal binding on Appellate Tribunal to pass such order within one year only.

Procedure of Appeal

Such appeal is to be made in Form GST APL-05 , along with relevant documents. A provisional acknowledgement will be issued immediately. Within 7 days of filing GST APL-01, a certified copy of decision or order in dispute is to be submitted along with fees and a final acknowledgment indicating appeal number shall be issued in Form GST APL-02.

Where the certified copy is submitted within 7 days of filing GST APL-01 then date of filing GST APL-01 shall be considered as date of filing appeal. If certified copy is submitted after 7 days, then date of submission of copy is considered as date of filing appeal.

The fees for appeal or restoration of appeal shall be lower of

• Rs. 1,000 for every Rs. 1 lakh of tax or input tax credit involved or amount of fine, fee or penalty determined in the order against which appeal is made.
• Rs. 25,000

There shall be no fee for application made before the Appellate Tribunal for rectification of errors.

When the application is made by subordinate officer of commissioner, it is to be made in Form GST APL-07 and a certified copy of decision or order is to be submitted within 7 days of filing the form.

Production of Additional Evidence before the Appellate Authority or Appellate Tribunal

The appellant is not allowed to produce any evidence, whether oral or documentary before the appellate authority other than the evidence produced by him before the adjudicating authority. Similarly, he is not allowed to produce any evidence, whether oral or documentary before the appellate tribunal other than the evidence produced by him before the appellate authority.

However, producing such additional evidence is allowed in following circumstances:

1. where the adjudicating authority or, as the case may be, the Appellate Authority has refused to admit evidence which ought to have been admitted.
2. where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or, as the case may be, the Appellate Authority.
3. where the appellant was prevented by sufficient cause from producing before the adjudicating authority or, as the case may be, the Appellate Authority any evidence which is relevant to any ground of appeal.
4. where the adjudicating authority or, as the case may be, 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.

Appellate authority or Appellate Tribunal has to record in writing the reasons for admission of any additional evidence.

The adjudicating authority or an officer authorized in this behalf has to be allowed a reasonable opportunity to examine the evidence or document or to cross-examine any witness produced by the appellant or to produce any evidence or any witness in rebuttal of the evidence produced by the appellant.

Authorized Representative

A person may authorize another person to appear before the officer, Appellate Authority or Appellate Tribunal on his behalf. However, in some cases he has to appear personally for examination on oath or affirmation.

A person may appoint following persons as authorized representative:

1. his relative or regular employee.
2. 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.
3. any chartered accountant, a cost accountant or a company secretary, who holds a certificate of practice and who has not been debarred from practice.
4. 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 two years: Provided that such officer shall not be entitled to appear before any proceedings under this Act for a period of one year from the date of his retirement or resignation.
5. any person who has been authorized to act as a goods and services tax practitioner on behalf of the concerned registered person.

If any person is found to be guilty of misconduct in relation to any proceedings under this Act, the Commissioner may, after providing him an opportunity of being heard, disqualify him from appearing as an authorised representative. This provision doesn’t apply to persons covered in points (b) and (c) above.

Following persons are not allowed to act as authorised representative:

1. who has been dismissed or removed from Government service.
2. 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.
3. who is found guilty of misconduct by the prescribed authority.
4. who has been adjudged as an insolvent. Such person is not allowed for the period during which the insolvency continues.

Appeal to High Court

Any person aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court. High court may admit such appeal, if it is satisfied that the case involves a substantial question of law.

The appeal is to be filed within 180 days from the date on which order appealed against is received by the person. High court may entertain such appeal after the expiry of 180 days if it is satisfied that there was sufficient cause for not filing it within 180 days.

Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question and the appeal shall be heard only on the question so formulated. However, the respondents may at the hearing, allowed to argue that the case does not involve such question. High court at its discretion may allow the appeal on any other question, if it is satisfied that the case involves such question.

The High Court shall decide the question of law and deliver such judgement containing the grounds on which such decision in founded and may award such costs as it deems fit.

Where an appeal is filed before the High court, it shall be heard by a bench of two or more Judges. The order shall be decided according to the opinion of majority of judges. When there is no majority then the Judges shall state the point of law on which they differ and on that point heard by one or more of other Judges. And then such points will be decided according to the majority.

The sum due to the Government as a result of order by the Appellate Tribunal has to be paid as per the order even if the appeal is filed in the High Court.

Appeal is required to made in Form GST APL-08.

Appeal to Supreme Court

An appeal can be filed in Supreme Court by any person aggrieved by the order of Appellate Tribunal or High Court.

The provisions of the Code of Civil Procedure, 1908, relating to appeals to the Supreme Court shall apply.

The sum due to the Government as a result of order by the Appellate Tribunal or High Court has to be paid as per the order even if the appeal is filed in the High Court.

Appeal not to be filed in certain conditions by central tax officer

The board on the recommendations of the council may issue orders for fixing monetary limits for the purposes of regulating the filing of appeal or application by the officer of the central tax under the provisions of this Chapter.

When an appeal is not filed by any officer on one issue, it doesn’t binds the officer to not file an appeal in similar issues or question of law. Any person, being a party in appeal cannot contend that the officer has not filed appeal in similar case and thus accepted the decision in the disputed issue.

Non-Appealable Decisions and Orders

No appeal shall lie against any decision taken or order passed by an officer of central tax if such decision taken or order passed relates to any one or more of the following matters

1. an order of the Commissioner or other authority empowered to direct transfer of proceedings from one officer to another officer.
2. an order pertaining to the seizure or retention of books of account, register and other documents.
3. an order sanctioning prosecution under this Act.
4. an order passed under section 80. (Payment of tax and other amount in instalments)

Revisional Authority

Revisional authority may at its own motion, or upon information received by him or on request from commissioner call for and examine the record of any proceedings. And if he considers that any decision or order passed by any officer subordinate to him is prejudicial to the interest of revenue, is illegal, or improper or has not taken into account certain material facts, then he may stay the operation of such decision or order for such period as he deems fit. After giving the concerned person an opportunity of being heard and after making such enquiry, pass such order, as he thinks just and proper.

Revisional authority shall not exercise any power if

1. appeal has been made against such order in appellate authority, appellate tribunal, High court or Supreme court.
2. Six months from the communication of order has not been elapsed.
3. More than 3 years has been passed after passing of such decision or order.
4. An order has already been passed by revisional authority.

If an appeal is made in appellate authority, appellate tribunal, High court or Supreme court then any order can be given by revisional authority on any point which has not been raised and decided before expiry of one year from the date of order of such appeal.