Appeal & Revision- Part I | Section 107-108 | CGST ACT 2017

CA Mamta Chopra 05 Aug 2020 47,904 Views 0 comment Print Goods and Services Tax | Articles

Simplified GST Series- Chapter 19- Section 107-108 /CGST ACT 2017 /Appeals & Revision –Part 1

Section 107- Appeals to Appellate Authority-

(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

(2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union Territory Tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act, or under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any Officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.

(3) Where, in pursuance of an order under sub-section (2), the authorized officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.

(4) The Appellate Authority may, if he is satisfied that the 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.

(5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed.

Analysis-

An assessee, aggrieved by any decision or order passed by adjudicating authority may prefer an appeal within a period of 3 months from the date of communication of decision or order in Form GST APL-01, along with relevant documents either electronically or otherwise as notified by the Commissioner against which a provisional acknowledgement will be issued immediately.
The grounds of appeal and form of verification must be duly signed as specified in Rule 26.
The certified copy of the decision or order is to be filed before the Appellate Authority within 7 days of filing the appeal.
A final acknowledgement indicating the appeal number shall be issued in Form GST APL-02 by the said authority
In case the said certified copy is submitted after a period of 7 days, the date of filing of appeal shall be the date of submission of such copy.
The appeal shall be considered as filed only when the final acknowledgement, indicating the appeal number is issued
Alternatively, the Commissioner of Central / State or any Union territory can, with a view to satisfy himself about the legality or propriety of any order or decision, direct a subordinate officer to file an application before the Appellate Authority within 6 months from the date of communication of decision or order in Form GST APL-03, along with relevant documents either electronically or otherwise as notified against issue of an acknowledgement
The Appellate Authority shall treat the application filed by authorized officer as if such authorized officer is appellant and the provisions of the Act relating to appeal will be applicable to such application.
The appellate authority in either of the above cases is empowered to condone the delay up to a period of 1 month.

(6) No appeal shall be filed under sub-section (1) unless the appellant has paid –

(a) 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

(b) a sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order ‘[subject to a maximum of twenty-five crore rupees], in relation to which the appeal has been filed.

(7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.

(8) The Appellate Authority shall give an opportunity to the appellant of being heard.

(9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.

Analysis-

The appeal has to be filed before following authorities-

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

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

Appeal has to be filed in prescribed form and manner along with payment of:
- Amount of tax, interest, fine, fee & penalty, as is admitted, in full; and
- pre-deposit of sum equal to 10% of remaining amount of tax in dispute (subject to a maximum of twenty- five crore rupees (effective from 01.02.2019).
On payment of above amount, the recovery proceedings for balance amount are deemed to be stayed.
The Appellate Authority shall give an opportunity to the appellant of being heard
Maximum 3 adjournments shall be granted to a party on showing reasonable cause that is to be recorded in writing.

(10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order.

(12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.

(13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed:

Provided that where the 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.

(14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority.

(15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State Tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.

(16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118, be final and binding on the parties.

Analysis-

Appellate authority may allow any additional grounds not specified in the grounds of appeal on being satisfied that the omission was not wilful or unreasonable.
Appellate authority has to pass the order confirming, modifying or annulling the decision or order appealed against, but shall not remand the case back to the adjudicating authority.
Opportunity of being heard to be granted in case of order for enhancing fees or penalty or fine in lieu of confiscation of goods or reducing amount of refund/input tax credit after issuing show cause notice.
The appellate authority has power to issue show cause notice in case it is of the opinion that any tax has not been paid or short paid or erroneously refunded or input tax credit is wrongly availed or utilised.
Appellate authority has to hear and decide the appeal, wherever possible, within a period of 1 year from the date of filing.
Where the 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 to communicate the copy of order to the appellant, the respondent, the adjudicating authority, Jurisdictional Commissioner of CGST, SGST and UTGST or an authority designated in their behalf
The order passed under this section shall be final and binding on the parties subject to provisions of section 108 (Powers of Revisional Authority) or Section 113 (Orders of Appellate Tribunal) or Section 117 (Appeal to High Court).

Section 108- Powers of Revisional Authority –

This section pertains to revisionary powers of Revisional Authority.

The Revisional Authority ans an authority appointed or authorised for revision of decision or orders as referred to in this section.

The Revisional Authority is empowered to examine any proceedings and stay the operation of any decision or order, if he considers that such decision or order passed by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of the revenue or illegal or improper or has not taken into account certain material facts.

After giving the concerned person an opportunity of being heard and making further necessary inquiry, the Revisional Authority may pass an order within 3 years of passing of the said order sought to be revised including enhancing or modifying or annulling the said decision or order
The Revisional Authority shall not exercise such revisionary powers if –

(a) appeal is filed against the order to –

— Appellate Authority U/s.107

— Appellate Tribunal U/s.112

— High Court U/s.117

— Supreme Court U/s.118

(b) period of 6 months as specified in section 107(2) has not expired or more than 3 years have expired after passing the decision or order .

(d) revisionary order has already been passed once.

However, the Revisional Authority may pass an order on any point which has not been raised & decided in an appeal either before the Appellate Authority, Appellate Tribunal, High Court or Supreme Court.

The Revisional Authority must pass the order within 1 year from the date of order passed in such appeal or within 3 years from the date of such passing the decision or order sought to be revised, whichever is later.

The order passed under this section shall be final and binding on the parties subject to provisions of Section 113 (Orders of Appellate Tribunal) or Section 117 (Appeal to High Court) or Section 118(Appeal to Supreme Court).

The time span between the date of decision of the Appellate Tribunal and the date of decision of the High Court or the date of decision of the High Court and the date of decision of Supreme Court should be excluded in computing the period of limitation of three years.

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