Q 1. Whether any person aggrieved by any order or decision passed against him has the right to appeal?
Ans. Yes. Any person aggrieved by any order or decision passed
against him has the right to appeal. It must be an order or decision passed by
an “adjudicating authority”. However, some decisions or orders (as provided for
in Section 93) are not appealable.
Q 2. When Commissioner of CGST feels that the order passed
is not legal and proper, whether he can revise the order himself?
Ans. No. The Commissioner of CGST cannot revise the order. In
the model law, for CGST and SGST, there are different provisions in this
regard. For CGST, as per Section 79(2), the Commissioner of CGST if he finds an
order or decision (passed by an adjudicating authority) to be not legal or
proper, can pass an order setting out the points for determination where he is
of the view that the order is not legal and proper and directing a GST officer
sub-ordinate to him to file an application to First Appellate Authority (FAA).
Such application is then treated by the FAA as if it were an appeal.
Q 3. What is the time limit to file appeal to First Appellate
Authority?
Ans. The time limit is fixed as 3 months from the date of communication
of order or decision.
Q 4. Whether this time limit applies even for
the departmental appeal/application filed consequent to order of Commissioner of
CGST?
Ans. Yes. It applies even for such applications filed which are
to be treated as appeal and all the provisions of appeal are made applicable
for such application as well.
Q 5. Whether the first appellate authority has any powers to
condone the delay in filing appeal?
Ans. Yes. He can condone a delay of upto one month from the
end of the prescribed period of 3 months for filing the appeal (3+1), provided
there is “sufficient cause” as laid down in the proviso to section 79(4).
Q 6. Whether the first appellate authority has any powers to
allow additional grounds not specified in the appeal memo?
Ans. Yes. He has the powers to allow additional grounds if
he is satisfied that the omission was not wilful or unreasonable.
Q 7. The order passed by First Appellate Authority has to be
communicated to whom?
Ans. First appellate authority has to communicate the copy of
order to the appellant and the adjudicating authority with a copy to
jurisdictional Commissioner of CGST and SGST.
Q 8. What is the amount of mandatory pre-deposit which
should be made along with every appeal?
Ans. 10% of amount in dispute (however, for SGST, there are
additional provisions for which the model law may be referred to, see question
no 12 and 13).
Q 9. What is the amount in dispute?
Ans. As per explanation to Section 79(6) of MGL, the expression
“amount in dispute” shall include–
(i) amount determined under section 46 or 47 or 48 or 51;
(ii) amount payable under rule-------of the GST Credit Rules
201…; and
(iii) amount of fee levied or penalty imposed.
Q 10. Whether in an appeal the FAA can pass an order
enhancing the quantum of duty / fine/ penalty / reduce the amount of refund / ITC
from the one passed by the original authority?
Ans. The FAA is empowered to pass an order enhancing the fees
or penalty or fine in lieu of confiscation or reducing the amount of refund or
input tax credit provided the appellant has been given reasonable opportunity
of showing cause against the proposed detrimental order. (First Proviso to
Section 79(10)). In so far as the question of enhancing the duty or deciding wrong
availment of ITC is concerned, the FAA can do so only after giving specific SCN
to the appellant against the proposed order and the order itself should be
passed within the time limit specified under Section 51. (Second Proviso to
Section 79(10).
Q 11. (only for SGST law) What is the provision relating to
pre-deposit before filing appeal to file appeal to First Appellate Authority
under SGST?
Ans. 10% of the amount in dispute has to paid before filing appeal.
This is common for both CGST and SGST. However, for SGST, in addition to this
10%, the appellant has to also 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” Further, if the Commissioner of SGST considers any case to be a
“serious case”, the departmental authority can apply to the first Appellate
Authority for ordering a higher amount of pre-deposit not exceeding 50% of the
amount in dispute.
Q 12. (Only for SGST law) What is the meaning of “serious
case”?
Ans. It is defined to mean a case involving a disputed tax
liability of not less than Rs. 25 Crores and where the Commissioner of SGST is
of the opinion (for reasons to be recorded in writing) that the department has
a very good case against the taxpayer.
Q 13. Can the Commissioner of SGST revise any order passed
under the Act by his subordinates?
Ans. Yes. Section 80(1) of SGST Act authorizes Commissioner
to call for and examine any order passed by his subordinates and in case he
considers the order of the lower authority to be erroneous in so far as it is
prejudicial to revenue, he can revise the order after giving opportunity of
being heard to the noticee.
Q 14. Can the Commissioner of SGST order for staying of
operation of any order passed by his subordinates pending such revision?
Ans. Yes.
Q 15. Are there any fetters to the powers of Commissioner
under SGST to revise orders of subordinates?
Ans. Yes. The Commissioner shall not revise any order if (a)
the order has been subject to an appeal under section 79 or under section 82 or
under section 87 or under section 88; or (b) more than three years have expired
after the passing of the decision or order sought to be revised. For details of
these and some other “fetters”, please refer to Section 80 of the MDL.
Q 16. When the Tribunal is having powers to refuse to admit the
appeal?
Ans. In cases where the appeal involves –
• tax amount or
• input tax credit or
• the difference in tax or
• the difference in input tax credit involved or
• amount of fine,
• amount of fees or
• amount of penalty ordered less than Rs. 1,00,000/-, the
Tribunal has discretion to refuse to admit such appeal.(Section82(2) of MGL)
Q 17. What is the time limit within which appeal has to be
filed before the Tribunal?
Ans. 3 months from the date of receipt of the order appealed
against.
Q 18. Can the Tribunal condone delay in filing appeal before
it beyond the period of 3 months? If so till what time?
Ans. Yes the Tribunal has powers to condone delay of any period
of time beyond the period of 3 months provided sufficient case is shown by the
appellant for such delay.
Q 19. What is the time limit for filing memorandum of cross
objections before Tribunal?
Ans. 45 days from the date of receipt of appeal.
Q 20. Bring out the differences in appeal (to Tribunal)
provisions under CGST & SGST?
(i) The provisions under Section 82 of SGST Act for appeal
by any person aggrieved by the order or decision passed against him by First
Appellate Authority are essentially similar to provisions contained in Section
82 of CGST Act and discussions made therein are equally applicable to section
82 of SGST as well.
(ii) In addition to the above the provision of Section 82 of
SGST Act also covers an appeal to be filed to Appellate Tribunal against the
revisionary order passed by Commissioner.
(iii) However the provisions relating to appeal by the
revenue against the order of first appellate authority as CGST Act is not
provided in SGST Act since the revisionary powers (against the orders passed by
the FAA, who in the states is likely to be “subordinate” to the Commissioner) is
provided to Commissioner to SGST.
(iv) In addition, the person aggrieved under SGST Act has to
pre-deposit full deposit of admitted tax, interest, fine, fee and penalty
arising from the impugned order.
Q 21. Whether interest becomes payable on refund of pre-deposit
amount?
Ans. Yes. As per Section 85 of MGL Where an amount deposited
by the appellant under sub-section (6)/(4) of section 79 or under sub-section
(10)/(7) of section 82 is required to be refunded consequent to any order of
the First Appellate Authority or of the Appellate Tribunal, as the case may be,
interest at the rate specified under section 39 shall be payable in respect of
such refund from the date of payment of the amount till the date of refund of
such amount.
Q 22. An appeal from the order of Tribunal lies to which
forum?
Ans. High Court if the High Court is satisfied that such an
appeal involves a substantial question of law. (Section 87(1)). However, if the
order passed by the Tribunal relates to a matter where two or more States, or a
State and Centre, have a difference of views regarding the treatment of a
transaction(s) being intra-State or inter-State; or a matter where two or more
States, or a State and Center, have a difference of views regarding place of
supply, then appeal against such order shall lie to the Supreme Court and not
High Court.
Q 23. What is the time limit for filing an appeal before the
High Court?
Ans. 180 days from the date of receipt of the order appealed
against. However, the High Court has the power to condone further delay on
sufficient cause being shown.