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CH 22 APPEAL - Unlocked
CH 22 APPEAL - Unlocked
APPEALS AND
REVISION
For the sake of brevity, the terms ‘Appellate Authority’, ‘Revisional Authority’, ‘input tax credit’
have been referred to as ‘AA’, ‘RA’ and ‘ITC’ respectively in this Chapter. The section numbers
referred to in the Chapter pertain to CGST Act, unless otherwise specified.
LEARNING OUTCOMES
After studying this Chapter, you will be able to –
identify the various kinds of appellate foram available under the CGST Act
and their hierarchy
explain the various aspects relating to filing of an appeal before the
Appellate Authority by the taxpayer as well as by the Department and the
provisions relating to revision of orders by the Revisional Authority
appreciate and explain the provisions relating to constitution and
structure of Appellate Tribunal as also the various aspects relating to filing
of an appeal before it by the taxpayer as well as by the Department
comprehend and explain the concept of mandatory pre-deposit for filing
appeals
explain the various aspects relating to filing of an appeal before the High
Court and the Supreme Court
apply the above and other provisions relating to appeals and revision in
problem solving
1. INTRODUCTION
Tax laws impose various obligations on taxpayers. Such
obligations are broadly of two kinds: levy-related (e.g.
scope of levy, taxable value, tax rate etc.) and
procedure-related (e.g., obtaining registration, filing of
returns, manner of depositing tax etc.). The taxpayer’s
compliance with these obligations is verified by tax
authorities (by exercising various powers such as
undertaking scrutiny, audit, anti-evasion proceedings,
etc.). As a result of which, sometimes there are situations of actual or perceived
non-compliances. If the difference in the views persists, it results into a dispute,
which is then required to be resolved.
Under tax laws, on any given set of facts and legal provisions there can be different
opinions or viewpoints. Hence, it is likely that the taxpayer may not agree with the
“adjudication order” passed by a tax authority. It is equally possible that the Tax
Department may itself not agree with the adjudication order. It is for this reason
that the tax statutes provide for an appellate mechanism to both the sides. In legal
parlance, appeal is a timely resort for review by a higher authority, where parties
request a formal change to an official decision.
Since the right to appeal is a statutory right (i.e. a right conferred by the statute),
the statute also places fetters on the exercise of this right. The time limits
prescribed by the statute for filing of appeals, the requirement of making pre-
deposit of a certain sum before the appeal can be heard by the competent authority
are the examples of such fetters on the statutory right.
India has adopted a dual GST, i.e. GST is levied by both Centre and State
Governments concurrently on a transaction. Does this mean that if a taxpayer is
aggrieved by any proceedings, he will have to approach both the authorities
separately for exercising his right of appeal? The answer is ‘no’.
GST law makes provisions for cross empowerment between CGST and SGST/UTGST
officers to ensure that a proper officer under the CGST Act is also treated as the
proper officer under the SGST/UTGST Act and vice versa. Thus, a proper officer can
issue orders with respect to both, the CGST as well as the SGST/UTGST laws. GST
law also provides that where a proper officer under one Act (say CGST) has passed
an order, any appeal/review/ revision/rectification against the said order will lie
only with the proper officers of that Act (CGST Act). Accordingly, if any order is
passed by the proper officer under, say Haryana SGST Act, any
appeal/review/revision/rectification against the said order will lie only with the
proper officer under the Haryana SGST Act.
Chapter XVIII [Sections 107 to 121] of the CGST Act supplemented with Chapter XIII
[Rules 108 to 116] of the CGST Rules prescribe the provisions relating to appeals
and revision. State GST laws also prescribe identical provisions.
Provisions of appeals and revision under CGST Act have also been made
applicable to IGST Act vide section 20 of the IGST Act.
A brief overview of the provisions covered under the aforesaid sections 107 to 121,
are outlined in this chapter.
APPELLATE TRIBUNAL
SUPREME COURT
2. RELEVANT DEFINITIONS
It is important to note that it is only the aggrieved person who can file
the appeal. Also, the appeal must be against a decision or order passed
under the Act.
(ii) Time limit for filing appeal
A person aggrieved by any decision/order of an adjudicating authority
can file an appeal to the AA within 3 months from the date of
communication of such decision/order.
(1) The adjudicating authority issued the adjudication order
on 23rd September and the same is communicated to the
taxpayer on 28th September. The relevant date for computing
the period of 3 months (for filing the appeal to AA) is 28th September
(date of communication of order) and not 23rd September.
The AA can condone the delay in filing of appeal by 1 month if it is
satisfied that there was sufficient cause for such delay [Section 107(4)].
(iii) Form for appeal to AA by the aggrieved person (taxpayer)
The appeal to the AA shall be filed in Form GST APL-01 either
electronically or otherwise as may be notified by the Commissioner and
a provisional acknowledgement shall be issued to the appellant
immediately. A certified copy of the decision/order appealed against
shall be submitted within 7 days of filing the appeal and a final
acknowledgement shall be issued thereafter.
(iv) Date of filing appeal
If the certified copy of the decision/order is submitted within 7 days from
the date of filing appeal in Form GST APL-01, the date of filing the appeal
shall be the date of the issue of the provisional acknowledgement. If the
said copy is submitted after 7 days, the date of filing the appeal shall be
the date of the submission of such copy.
The appeal shall be treated as filed only when the final
acknowledgement is issued.
(2) The appeal is filed and provisional acknowledgement
issued on 10th September. The taxpayer submits the certified
copy of the order sought to be appealed against on 15th
September (within 7 days). The date of filing appeal is 10th September.
on 3rd August. The AA can condone the delay in filing of appeal upto
23rd August (up to 1 month) if it is satisfied that there was sufficient
cause for such delay.
(iii) Form for application
The application shall be made in GST APL-03 either electronically or
otherwise as may be notified by the Commissioner.
(iv) Application to be treated as appeal
Such application shall be dealt with by the AA as if it were an appeal
made against the decision/order of the adjudicating authority [Section
107(3)].
There is no requirement of making a pre-deposit in the case of departmental
appeal.
C. Appeal process followed by AA
(i) Duties of the AA
The AA has to follow the principles of natural justice – such as hearing
the appellant, allowing reasonable adjournments (not more than 3),
permitting additional grounds of appeal (if found reasonable), etc.
(ii) Orders of the AA
The AA can make further inquiry and pass its order (i.e. Order-in-
Appeal) which may confirm, modify or annul the decision/order
appealed against. However, the AA cannot refer the case back to
the adjudicating authority that passed the said decision/order.
The AA can also increase the “rigour” of the order appealed
against by enhancing any fee or penalty or fine in lieu of
confiscation or confiscating goods of greater value or reducing
the amount of refund or ITC, but this can only be done after the
AA has given to the appellant a reasonable opportunity of
showing cause against the proposed order.
If the AA is of the opinion that any tax has not
been paid or short-paid or erroneously
refunded, or where ITC has been wrongly
availed or utilized, no order requiring the
appellant to pay such tax or ITC shall be
passed unless the appellant is given notice to show cause against
the proposed order and the order is passed within the time limit
specified under section 73 or section 74.
The Order-in-appeal shall be a “speaking order” i.e., it shall state
the points for determination, the decision thereon and the
reasons for the decision.
The law provides an advisory time limit of 1 year from date of
filing of appeal for the AA to decide the appeal. The period of
stay ordered by any Court or Tribunal shall be excluded in
computing the period of 1 year.
(5) The adjudicating authority passed the order on
23rd January 2021 and it was communicated to the
taxpayer on the same day. The taxpayer filed the appeal
against the order with the AA on 16th February 2021. The AA
should decide the appeal by 16th February 2022, where it is
possible to do so.
The AA may allow the appellant during the hearing to add any ground of
appeal not specified in the grounds of appeal and can grant up to 3
adjournments.
The AA may confirm, modify, annul the decision or order appealed against
after making further inquiry, as necessary.
(iii) On examination of the case records, if RA is of the view that the decision
or order passed under the CGST Act/ SGST Act/ UTGST Act by any
officer subordinate to him
• is erroneous, in so far as it is prejudicial to the interest of the
revenue and is illegal or improper;
• has not taken into account material facts, whether available at the
time of issuance of the said order or not;
• in consequence of an observation by the Comptroller and Auditor
General of India
he may, if necessary, stay the operation of such decision or order for
such period as he deems fit.
(iv) Thereafter, the RA after making such further inquiry as may be
necessary, pass such order, as he thinks just and proper, including
enhancing or modifying or annulling the said decision or order. Here,
‘decision’ includes intimation given by any officer lower in rank than the
RA.
Along with the order, the RA shall also issue a summary of the order
clearly indicating the final amount of demand confirmed.
(v) If the RA decides to pass an order which is likely to affect the person
adversely, he shall serve a notice on such person and give him a
reasonable opportunity of being heard.
(vi) Every revision order, subject to further appeal to the Tribunal, High
Court or Supreme Court, be final and binding on the parties.
B. Fetters to the powers of revision
The power of revision is subject to the condition that non-appealable orders and
decisions under section 121 cannot be revised [Section 121 which provides for
such orders/decisions is discussed under Heading 14 of this Chapter].
The RA shall not exercise the power of revision if:
(a) the order sought to be revised has been subject to an appeal before AA
or Tribunal or High Court or Supreme Court*; or
(b) the period of 6 months (from the date of communication of order) has
not yet expired or more than 3 years have expired after the passing of
the decision/order sought to be revised; or
(c) the order has already been taken for revision at an earlier stage; or
(d) the order sought to be revised is itself a revisional order.
*The RA may still pass an order on any point which has not been raised and
decided in an appeal before AA/Tribunal/High Court/Supreme Court, before
the expiry of a period of 1 year from the date of the order in such appeal or
before the expiry of a period of 3 years from the date of initial order,
whichever is later.
(7) A taxpayer is served with an adjudication order on
25th May 2021. The RA can revise the order during the period
between 26th November 2021 (after expiry of 6 months) and
25 May 2024.
th
(8) ABC Pvt. Ltd. manufactures product ‘P’ and ‘Q’. The company
avails benefit of exemption notification in respect of product ‘P’ and
pays tax on product ‘Q’ @ 12%. Show cause notice was issued to
the company alleging that product ‘P’ was not eligible for exemption and
product ‘Q’ was liable to tax @ 18%. The adjudicating authority concluded
that the rate of tax in respect of product ‘Q’ was correct but the exemption
on product ‘P’ was being availed wrongly. Consequently, an order confirming
demand of ` 10 lakh was passed by the adjudicating authority on 15th January
2021.
The company filed an appeal against the order before the AA on
16th February 2021. The AA passed the order in favour of the company in
respect of product ‘P’ on 31st October 2021.
The RA can pass the revised order in respect of tax rate on product ‘Q’ before
31st October 2022 (1 year from the date of order passed by the AA) or
15th January 2024 (3 years from the date of adjudication order), whichever is
later. Thus, the RA can pass the revised order by 15th January 2024.
C. Period to be excluded in computing limitation period of 3 years
(i) If the decision/order sought to be revised
involves an issue on which the Appellate
Tribunal or the High Court has given its
decision in some other proceedings and an
appeal to the High Court or the Supreme
Court against such decision of the Appellate
Tribunal or the High Court is pending, the
period spent between:
• the date of the decision of the Appellate Tribunal and the date of
the decision of the High Court or
• the date of the decision of the High Court and the date of the
decision of the Supreme Court
National/ Regional/
State Bench Area Bench
It is provided that on receipt of notice that an appeal has been filed (by
the appellant), the party against whom the appeal has been preferred
(i.e. the respondent) may, notwithstanding, that he may not have
appealed against such order or any part thereof, file within 45 days a
memorandum of cross-objections in GST APL-06 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 for filing the initial appeal.
The Tribunal can condone the delay of up to 45 days beyond the
specified time period of 45 days, if it is satisfied that there was sufficient
cause for the delay.
(vii) Fees for filing appeal
The fees for filing of appeal or restoration of appeal shall be ` 1,000 for
every ` 1,00,000 of tax or ITC involved or the difference in tax or ITC
involved or the amount of fine, fee or penalty determined in the order
appealed against. However, the fee shall not exceed ` 25,000.
There shall be no fee for application made before the Appellate Tribunal
for rectification of errors.
(viii) Mandatory pre-deposit for filing appeal
No appeal can be filed before the Appellate Tribunal unless a specified
amount of pre-deposit is made by the appellant. The concept of pre-
deposit is discussed separately under Heading No. 7.
B. Departmental appeal
(i) The Commissioner may, on his own motion, or upon request from the
SGST/UTGST Commissioner, examine the record of any order passed by
the AA or RA under the CGST Act/SGST Act/ UTGST Act for the purpose
of satisfying himself as to the legality or propriety of such order.
(ii) The Commissioner 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 him
(iii) The application shall be made in GST APL-07 either electronically or
otherwise on the common portal.
• Appellant
7. MANDATORY PRE-DEPOSIT
The right to appeal is a statutory right which operates within the limitation placed
on it by the law. One such limitation that is generally applied basis this principle in
tax statutes is that an appellant must first deposit the adjudged dues before his
appeal can be heard.
However, an appellant may succeed in his appeal, and hence it would (in retrospect)
be unfair to saddle him with this financial burden. To balance these factors, tax
The payment of pre-deposit ensures staying of the recovery proceedings for the
balance amount of demand in dispute.
(10) ABC Pvt. Ltd. received a show cause notice demanding tax of ` 10
lakh, penalty of ` 10 lakh and interest of ` 2 lakh. The adjudicating
authority passed the order confirming the entire demand. While ABC Pvt.
Ltd. admits the tax liability of ` 5 lakh and interest of ` 50,000, it wishes to file an
appeal to litigate the balance demand amount. The amount of pre-deposit to be
made by ABC Pvt. Ltd. for filing the appeal to the AA is computed as under-
(i) Full amount of tax, interest and penalty as admitted by the company, i.e.
` 5.5 lakh
(ii) 10% of the tax in dispute, i.e. ` 50,000 (10% of ` 5 lakh)
Therefore, total pre-deposit to be made by the company is ` 6 lakh. On payment
of such pre-deposit, the recovery proceedings for the balance amount of ` 16 lakh
will get stayed.
(11) ABC Pvt. Ltd. received a show cause notice demanding IGST of ` 600
crore, penalty of ` 100 crore and interest of ` 10 crore. The adjudicating
authority passed the order confirming the entire demand. While ABC Pvt.
Ltd. admits the tax liability, penalty and interest of ` 50 crore, ` 10 crore and
` 1 crore respectively, it wishes to file an appeal to litigate the balance demand
amount. The amount of pre-deposit to be made by ABC Pvt. Ltd. for filing the
appeal to the AA is computed as under-
(i) Full amount of tax, interest and penalty as admitted by the company, i.e.
` 61 crore
(ii) 10% of the tax in dispute, i.e. ` 55 crore (10% of ` 550 crore) subject to a
maximum of ` 50 crore
Therefore, total pre-deposit to be made by the company is ` 61 crore (total liability
admitted by the company) plus ` 50 crore, i.e. ` 111 crore. On payment of such
pre-deposit, the recovery proceedings for the balance amount of ` 599 crore will
get stayed.
Section 112(8) lays down that no appeal can be filed before the Tribunal, unless the
appellant deposits 1
(a) full amount of tax, interest, fine, fee and penalty arising from the impugned
order, as is admitted by him, and
(b) 20% of the remaining amount of tax in dispute, in addition to the amount
deposited before the AA, arising from the said order, subject to a maximum
of ` 50 crore (` 100 crore in case of IGST), in relation to which appeal has
been filed.
* As per section 20 of the IGST Act
Where the appellant has made the pre-deposit, the recovery proceedings for the
balance amount of demand in dispute shall be deemed to be stayed till the disposal
of the appeal.
Authority Pre-deposit
When the tax involved is CGST When the tax involved is IGST
1
It may be noted that the Appellate Tribunal has not been constituted so far and thus, no appeals
can be filed before it.
(13) ABC Pvt. Ltd. wishes to file an appeal with the Appellate Tribunal
against an order of the AA demanding IGST of ` 1200 crore. The company
admits the liability of ` 100 crore but wishes to litigate the balance
demand amount and thus, files an appeal with the Appellate Tribunal. The amount
of pre-deposit to be made by ABC Pvt. Ltd. for filing the appeal to the Appellate
Tribunal is computed as under-
(i) Full amount of tax, interest and penalty as admitted by the company, i.e.
` 100 crore
(ii) 20% of the tax in dispute, i.e. ` 220 crore (20% of ` 1100 crore) subject to a
maximum of ` 100 crore
Therefore, total pre-deposit to be made by the company is ` 100 crore (total liability
admitted by the company) plus ` 100 crore, i.e. ` 200 crore.
(iv) The AA or the Appellate Tribunal shall not take any additional evidence unless
the adjudicating authority or an officer authorised in this behalf by the said
authority has been allowed a reasonable opportunity -
(a) to examine the evidence or document or to cross-examine any witness
produced by the appellant; or
(b) to produce any evidence or any witness in rebuttal of the additional
evidence produced by the appellant.
(v) The provisions of this rule shall not affect the power of the AA or the
Appellate Tribunal to direct the production of any document, or the
examination of any witness, to enable it to dispose of the appeal.
9. APPEARANCE BY AUTHORISED
REPRESENTATIVE [SECTION 116]
Any person who is entitled or required to appear before a GST Officer or the AA or
the Tribunal, in connection with any proceedings under the CGST Act, may appear
through an authorised representative (except when he is required under the Act to
appear personally for examination on oath or affirmation).
(i) Who can be authorized representative?
Broadly an authorised representative can be a relative, a regular employee,
an advocate, a chartered accountant, a cost accountant, a company secretary,
or a GST Practitioner. It is also provided that specified indirect tax gazetted
officers can appear as authorised representative after one year from the date
of their retirement/resignation.
(ii) Disqualifications for authorized representative
The GST law also provides some disqualifications for an authorised
representative. Section 116(3) lays down that no person,—
(a) who has been dismissed or removed from Government service; or
(b) who is convicted of an offence connected with any proceedings under
the CGST Act/ SGST Act/ UTGST Act/IGST Act or under the earlier 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 and/or services;
or
5. The Appellate Tribunal has the discretion to refuse to admit any appeal.
Examine the correctness of the above statement.
6. In an order dated 20th August issued to GH (P) Ltd., the Joint Commissioner of
CGST has confirmed IGST demand of ` 280 crore. The company is disputing
the entire demand of IGST and wants to know the amount of pre-deposit it has
to make under the IGST Act for filing an appeal before the Appellate Authority
against the order of the Joint Commissioner.
Assuming that the Appellate Authority also confirms the order of the Joint
Commissioner and the company wants to file an appeal before the Appellate
Tribunal against the order of the Appellate Authority, determine the amount of
pre-deposit to be made by the company for filing the said appeal.
7. With reference to the provisions of section 121, specify the orders against which
no appeals can be filed.
8. Mr. A had filed an appeal before the Appellate Tribunal against an order of the
Appellate Authority where the issue involved relates to place of supply. The
order of Appellate Tribunal is also in favour of the Department. Mr. A now
wants to file an appeal against the decision of the Appellate Authority as he
feels the stand taken by him is correct.
You are required to advise him suitably with regard to filing of an appeal before
the appellate forum higher than the Appellate Tribunal.
9. Pursuant to audit conducted by the tax authorities under section 65, a show
cause notice was issued to Home Furnishers, Surat, a registered supplier,
alleging that it had wrongly availed the input tax credit without actual receipt
of goods for the month of July. In the absence of a satisfactory reply from Home
Furnishers, Joint Commissioner of Central Tax passed an adjudication order
dated 20th August (received by Home Furnishers on 22nd August) confirming a
tax demand of ` 50,00,000 (i.e., CGST 25,00,000 and SGST 25,00,000) and
imposing a penalty of equal amount under section 122.
Home Furnishers does not agree with the order passed by the Joint
Commissioner. It decides to file an appeal with the Appellate Authority against
the said adjudication order. It has approached you for seeking advice on the
following issues in this regard:
(1) Can Home Furnishers file an appeal to Appellate Authority against the
adjudication order passed by the Joint Commissioner of Central Tax? If
yes, till what date can the appeal be filed?
(2) Does Home Furnishers need to approach both the Central and State
Appellate Authorities for exercising its right of appeal?
(3) Home Furnishers is of the view that there is no requirement of paying
pre-deposit of any kind before filing an appeal with the Appellate
Authority. Give your opinion on the issue.
10. With reference to the provisions of section 120, list the cases in which appeal is
not to be filed and also specify other relevant provisions in this respect.
11. XY Company received an adjudication order passed by the Assistant
Commissioner of Central Tax on 1st November under section 73 wherein it was
decided as follows:
ANSWERS
1. Yes, any person aggrieved by any order or decision passed by an adjudicating
authority under the CGST Act has the right to appeal to the Appellate
Authority under section 107. The appeal should be filed within 3 months from
the date of communication of such order or decision. However, the Appellate
Authority has the power to condone the delay of up to 1 month in filing the
appeal if there is sufficient cause for the delay. The appeal can be filed only
when the admitted liability and 10% of the disputed tax amount is paid as
pre-deposit by the appellant.
However, no appeal can be filed against the following orders in terms of
section 121:-
(a) an order of the Commissioner or other authority empowered to direct
transfer of proceedings from one officer to another officer;
(b) an order pertaining to the seizure or retention of books of account,
register and other documents; or
(c) an order sanctioning prosecution under the Act; or
(d) an order passed under section 80 (payment of tax in installments).
2. Section 107(2) provides that Department can file a “review
application/appeal” with the Appellate Authority.
The Commissioner may, on his own motion, or upon request from the
SGST/UTGST Commissioner, examine the record of any proceedings in which
an adjudicating authority has passed any decision/order to satisfy himself as
to the legality or propriety of the said decision /order. The Commissioner
may, by order, direct any officer subordinate to him to apply to the Appellate
Authority within 6 months from the date of communication of the said
decision/order for the determination of such points arising out of the said
decision/order as may be specified him.
The AA can condone the delay in filing of appeal by 1 month if it is satisfied
that there was sufficient cause for such delay [Section 107(4)].
Such application shall be dealt with by the AA as if it were an appeal made
against the decision/order of the adjudicating authority [Section 107(3)].
There is no requirement of making a pre-deposit in case of departmental
appeal.
3. Section 107(6) provides that no appeal shall be filed before the Appellate
Authority, unless the appellant has paid—
(a) full amount of tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him; and
(b) a sum equal to 10% of the remaining amount of tax in dispute arising
from the impugned order, subject to a maximum of ` 25 crore.
Section 112(8) lays down that no appeal can be filed before the Appellate
Tribunal, unless the appellant deposits 2
(a) full amount of tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him; and
(b) 20% of the remaining amount of tax in dispute, in addition to the
amount deposited before the AA, arising from the said order, subject
to a maximum of ` 50 crore, in relation to which appeal has been filed.
The above limits are applicable for the pre-deposits to be made under the
CGST Act. Equal amount of pre-deposit is payable under the respective SGST
Act as well.
Where the appellant has made the pre-deposit, the recovery proceedings for
the balance amount shall be deemed to be stayed till the disposal of the
appeal.
4. Section 2(99) defines “Revisional Authority” as an authority appointed or
authorised under the CGST Act for revision of decision or orders referred to
in section 108.
Section 108 of the Act authorizes such “revisional authority” 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 and is illegal or improper or has not taken into account certain
material facts, whether available at the time of issuance of the said order or
not or in consequence of an observation by the Comptroller and Auditor
General of India, he may, if necessary, can revise the order after giving
opportunity of being heard to the person concerned. The “revisional
authority” can also stay the operation of any order passed by his subordinates
pending such revision.
The “revisional authority” shall not revise any order if-
(a) the order has been subject to an appeal under section 107 or under
section 112 or under section 117 or under section 118; or
2
It may be noted that the Appellate Tribunal has not been constituted so far and thus, no appeals
can be filed before it.
(b) the period specified under section 107(2) has not yet expired or more
than 3 years have expired after the passing of the decision or order
sought to be revised.
(c) the order has already been taken up for revision under this section at
any earlier stage.
(d) the order is a revisional order
5. The statement is partially correct.
Though the Appellate Tribunal does have the power to refuse to admit an
appeal, it cannot refuse to admit ANY appeal. It can refuse to admit an appeal
where –
o the tax or input tax credit involved or
o the difference in tax or the difference in input tax credit involved or
o the amount of fine, fees or penalty determined by such order,
does not exceed ` 50,000.
6. Section 107(6) read with section 20 of the IGST Act provides that no appeal shall
be filed with the Appellate Authority unless the applicant has paid 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 10% of the remaining amount of
tax in dispute arising from the said order subject to a maximum of ` 50 crore.
Thus, the amount of pre-deposit for filing an appeal with Appellate Authority
cannot exceed ` 50 crore (for tax in dispute) where IGST demand is involved.
In the given case, the amount of pre-deposit for filing an appeal with the
Appellate Authority against the order of Joint Commissioner, where entire
amount of tax is in dispute, is:
(i) ` 28 crore [10% of the amount of tax in dispute, viz. ` 280 crore]
or
(ii) ` 50 crore,
whichever is less.
= ` 28 crore.
Further, section 112(8) provides that no appeal shall be filed with the
Appellate Tribunal unless the applicant has paid 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 as pre-deposit while filing
appeal to the Appellate Authority, arising from the said order subject to a
maximum of ` 100 crores.
Thus, in the given case, the amount of pre-deposit for filing an appeal with
the Appellate Tribunal against the order of the Appellate Authority, where
entire amount of tax is in dispute, is:
(i) ` 56 crores [20% of the amount of tax in dispute, viz. 280 crores]
or
(ii) ` 100 crores,
whichever is less.
= ` 56 crores.
7. As per section 121, no appeal shall lie against any decision taken or order
passed by a CGST officer if such decision taken or order passed relates to any
one or more of the following matters, namely:—
(a) an order of the Commissioner or other authority empowered to direct
transfer of proceedings from one officer to another officer; or
(b) an order pertaining to the seizure or retention of books of account,
register and other documents; or
(c) an order sanctioning prosecution under the CGST Act; or
(d) an order passed under section 80 (payment of tax in instalments).
8. As per section 117(1), an appeal against orders passed by the State Bench or
Area Benches of the Tribunal would lie to the High Court if the High Court is
satisfied that such an appeal involves a substantial question of law.
However, appeal against orders passed by the National Bench or Regional
Benches of the Tribunal would lie to the Supreme Court and not High Court.
As per section 109(5) of the Act, only the National Bench or Regional Benches
of the Tribunal can decide appeals where one of the issues involved relates
to the place of supply.
Since the issue involved in Mr. A’s case relates to place of supply, the appeal
in his case would have been decided by the National Bench or Regional Bench
of the Tribunal. Thus, Mr. A will have to file an appeal with the Supreme Court
and not with the High Court.
9. (1) An appeal against a decision/order passed by any adjudicating
authority under the CGST Act or SGST Act/ UTGST Act is appealable
before the Appellate Authority [Section 107(1)]. Thus, Home Furnishers
3
Provisions existing as on 30.04.2021
4
Provisions existing as on 30.04.2021