Appeals to Appellate Tribunal: The Tribunal is the second level of appeal, where appeals can be filed against the orders-in-appeal passed by the AA or order in revision passed by revisional authority, by any person aggrieved by such an Order-in-Appeal/ Order-in-Revision.
The law envisages constitution of a two tier Tribunal namely
- (1) The National Bench/Regional Benches and
- (2) The State Bench/ Area Benches.
Jurisdiction of the two constituents of the GST Tribunal is also defined. If place of supply is one of the issues in dispute, then the National Bench/ Regional benches of the Tribunal will have jurisdiction.
Step by step approach:
- The National bench or regional Benches shall have jurisdiction to hear appeals against the orders passed by the appellate authority i.e., Commissioner (Appeals) or the Revisional Authority in the cases where one of the issues involved relates to the place of supply
- Other matters will fall in jurisdiction of State bench or Area Bench
- Appellate Tribunal can refuse to admit any appeal where the amount involved does not exceed fifty thousand rupees
- Time limit of three months from the date of communication is available to aggrieved person for filing appeal. Tribunal can condone delay for another three months.
- The appeal has to be filed electronically, in FORM GST AL-05, on the common portal and a provisional acknowledgement shall be issued to the appellant immediately.
- A hard copy of the appeal then shall be submitted in triplicate and shall be accompanied by a certified copy of the decision or order appealed along with the supporting documents within seven days of filing electronic appeal.
- A final acknowledgement, indicating appeal number shall be issued FORM GST APL-02 to appellant.
- The date of filing will be issuance of provisional acknowledgement if the hard copy as above is submitted within time. If hard copy is submitted after 7 days, then relevant date would be the date of submission.
- Department can also file appeal to Tribunal against order passed by an Appellate or Revisionary Authority.
- For this purpose, the Commissioner can call for and examine the records for the purpose of satisfying himself as to the legality or propriety of the said decision or order.
- If not satisfied he may pass an order directing any officer subordinate to him to apply to the appellate tribunal.
- The appeal has to be filed within six months from the date of communication of the said decision or order. Delay in filing can be condoned by Tribunal by another three months .
- Authorized officer will file appeal in FORM GST AP-07 electronically and also submit hard copies thereof accompanied by a certified copy of the decision or order appealed against along with the supporting documents within seven days.
- Cross-objection can be filed in prescribed Memorandum by the opposite party to the appeal within forty five days of the receipt of notice of appeal. Such memorandum shall be disposed of by the Appellate Tribunal, as if it were an appeal.
Who can appeal to GST Appellate Tribunal?
A person unhappy with the decision of the First Appellate Authority or the Revisional Authority, can appeal against the decision to the National Appellate Tribunal (Appellate Tribunal). They must appeal within 3 months from the date of appeal along with the FORM GST APL-05 and fees.
Fees
Every applleant must pay –
- Fee for filing Appeal to Appellate tribunal is one thousand rupees for every lakh rupees of tax or input 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 maximum of twenty five thousand rupees.
- The full amount from the original order that he agrees to (including tax, interest, fine, fee and penalty) and
- 20% of the amount of tax in dispute
What will be the constitution of the National Appellate Tribunal?
National Appellate Tribunal will be formed as follows-
- The National Bench (at Delhi) will be headed by a National President with 1 Technical member from Centre and from State (National Bench)
- Regional Benches (a Judicial Member, one Technical Centre Member and one Technical Member from State)
- One Bench for each State (State Benches) headed by State President
- Area Benches under State Benches
- Every State & Area Bench will consist of judicial and technical persons (CGST and SGST) as prescribed
- The qualifications, eligibility and appointment of the National President, Judicial and CGST Members will be as per the Act and the recommendations of the Council.
Will all appeals be accepted?
The Appellate Tribunal can refuse to admit any appeal where the amount involved (tax/input tax credit/fine/fee/penalty) is lower than Rs. 50,000.
If this committee is of the opinion that the order was not legal or not properly passed then it can direct any officer to apply to the Appellate Tribunal within 6 months from the appeal date (extendable by 3 months).
What happens to the party in whose favour the decision was made?
The benefitted party (in whose favour the earlier decision was made) will receive a notice that an appeal was sent to Appellate Party. They can then file a memorandum of cross-objections within 45 days of the receipt of notice. (Maybe extended for 45 days more if there is sufficient cause).
Decisions taken by the Appellate Tribunal
The Appellate Tribunal can confirm, modify or annul the decision or refer the case back to the First Appellate Authority [or the revisional authority].
It may also refer the case back to the original adjudicating authority, with directions for a fresh decision after considering any additional evidence.
The Appellate Tribunal shall give the decision within a period of one year from the appeal filing date.
A copy of the order passed will be given to-
- The First Appellate Authority or the revisional authority, i.e.., the original adjudicating authority
- The appellant
- The jurisdictional Commissioner of CGST and
- The jurisdictional Commissioner of SGST.
Procedure before Appellate Tribunal
- Appellate Tribunal will grant an opportunity of hearing to appellant.
- The hearing can be adjourned for maximum three occasions by recording reasons in writing.
- Appellate Tribunal can also allow to add/Include grounds of appeal if satisfied that their omission was not willful or unreasonable.
- The Appellate Tribunal, as far as possible within one year of appeal, shall pass such order in writing, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against.
- The Appellate Tribunal can also remand the case back to the Appellate or Provisional Authority.
- The Appellate Tribunal has the power to rectify any error apparent on the face of records, if such error is noticed by it on its own accord, or is brought to its notice by the appellant or department within a period of three months from the date of the order.
- Rectification 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 can only be done after the party has been given an opportunity of being heard.
- The Appellant Tribunal shall have power to regulate its own procedures.
- It shall be guided by the principles of natural justice.
- The Tribunal has same powers as are vested in a Civil court for summoning or seeking the attendance of any person and examining him on oath or requiring the discovery and production of documents or receiving evidence on affidavits or setting aside any order of dismissal of any representation for default or any order passed by it ex parte etc.
Will adjournment be allowed?
The Appellate Tribunal can adjourn the hearing of the appeal for maximum 3 times. The reasons for adjournment must be recorded in writing.
Can the Appellate Tribunal amend its own order?
The Appellate Tribunal can amend its order passed to rectify any apparent mistake within a period of three months from the date of the order.
The mistake may be noticed by the Appellate Tribunal itself or may be brought to its notice by the Commissioner of GST or the other party to the appeal.
Any amendment which will increase the tax liability or decrease the refund or input tax credit will be done only after a reasonable opportunity of being heard has been given.
If the order is stayed by an order of a Court or Tribunal, the period of such stay shall be excluded from the one year period.
How will decisions be taken by the Appellate Tribunal?
The powers and functions of the Appellate Tribunal will be discharged by Benches.
The State Bench & Area Bench shall consist of-
- 1 Judicial Member (Judicial)
- 1 CGST Member (Technical)
- 1 SGST Member (Technical)
- State President
A single member can dispose of any case where the amount involved is below 5 lakhs.
Difference in opinion in the Bench
Decision will be taken on basis of majority.
If the members are equally divided, they shall refer to the National President or the State President. He shall refer the case to the other Benches. Then the decision will be taken on the basis of majority of the original and the referred bench.
Powers of the Appellate Tribunal
The Appellate Tribunal shall have the same powers as a court under the Code of Civil Procedure, 1908, for trying a case. It will be a deemed Civil Court.
Is interest payable on refund of fees?
If the fees deposited by the appellant is required to be refunded due to any order of the First Appellate Authority or of the Appellate Tribunal, as the case may be, and it is not refunded within 60 days interest will be payable from the date of payment of the fees till the date of refund. The interest rate will not exceed 18%.
If he is not happy with the decision of the National Appellate Tribunal he can appeal to High Court and finally Supreme Court.
Appeal to High Court
Appeal against orders passed by the State Bench or Area Bench of the Appellate Tribunal shall lie to the High Court and the High Court may admit such appeal, if it is satisfied that the case involves a substantial question of law and doesn’t not involve any issue relating to place of supply.
This appeal in FORM GST APL-08 shall be filed within a period of one hundred and eighty days(180 days) from the date on which the order appealed against is received by aggrieved party.
High court can condone delay in filing appeal without any limit. The Appeal shall be heard by a bench of not less than two judges.
Appeal to Supreme Court
An Appeal shall lie to the supreme court from any order passed by the National Bench or Regional Benches of the Appellate Tribunal where on the issues involved relates to place of supply.
Appeal would also lie to supreme court from any judgment or order passed by the High Court in an appeal in any case which the High Court certifies to be a fit case for appeal to the supreme court.