The issue whether an appeal can be filed against the order of blocking of Electronic Credit Ledger (ECL), has been analysed by Hon’ble Bombay High Court in the matter of Dee Vee Project Limited vs. Government of Maharashtra and others (dated 11th February, 2022). The Hon’ble Court observed as under-
Under section 107(1), any person aggrieved by any decision or order passed under the CGST Act or the State GST Act or the Union Territory GST 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. To have more clarity, it is reproduced thus:-
“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”.
Reading the provision, we can see that appeal under section 107(1) can be filed against a decision or order passed under Central GST Act or State GST Act or the Union Territory GST Act by an adjudicating authority. It is also clear that this provision does not include any decision or order passed under the Rules framed under Central GST Act or any other Rules. In this case, the respondents maintain that the impugned order and action has been passed and taken under rule 86-A of the Rules, 2017. Therefore, we find that no appeal remedy could have been available to the petitioner under this provision.
Under section 107(2), a power is conferred upon the Commissioner to revise, on his own motion, or upon a request from the Commissioner of State Tax or the Commissioner of Union territory tax, any order passed by an adjudicating authority. For the sake of clarity, this provision of law is reproduced thus:-
“Section 107 (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 proceedings in which an adjudicating authority has passed any decision or order under this Act or 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”.
A careful perusal of the provision would show that the revisional power conferred upon the Commissioner is in respect of an order passed by an adjudicating authority and the expression, “adjudicating authority”, as defined in section 2(4) excludes the “Revisional Authority” from its ambit. It is, therefore, clear that the petitioner could not have filed any revision petition before the Commissioner under section 107(2) of the CGST Act. In any case, no authority, Commissioner here, can be a revisional authority against his own order, though he can be a reviewing authority against his own order, if power of review is expressly conferred upon him.
Thus, neither under sub-section (1) nor under sub- section (2) of section 107, the petitioner could have found any succour for resolution of it’s grievance and, therefore, we reject the contention of the respondents that this petition is not maintainable due to availability of an alternate remedy.
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Sir,
Whether rule 86A, GST Rules, is constitutionally valid?
CA Om Prakash Jain s/p J.K.Jain, Jaipur
Tel 9414300730/0141-3584043