Appeal & Revision- Part III | Section 113-121 | CGST ACT 2017

Simplified GST Series-Appeals-Revision/ Section 113-121/CGST ACT 2017/PART-3

Article explains Section 113 – Orders of Appellate Tribunal, Section 114 – Financial and administrative powers of President, Section 115 – Interest on refund of amount paid for admission of appeal, Section 116 – Appearance by authorised representative, Section 117 – Appeals to High Court, Section 118 – Appeal to Supreme Court, Section 119 – Sums due to be paid notwithstanding appeal etc. Section 120 – Appeal not to be filed in certain cases and Section 121 – Non-appealable decision and orders.

Section 113 – Orders of Appellate Tribunal

This section pertains to the orders by Appellate Tribunal.

a. The Appellate Tribunal to pass the order confirming, modifying or annulling the decision or order appealed against.

b. The Appellate Tribunal also has power to remand the case back to the appellate authority or the Revisional authority or the original adjudicating authority.

c. Maximum 3 adjournments shall be granted to a party on showing reasonable cause to be recorded in writing

d. The Appellate Tribunal is empowered to amend its order to rectify any mistake apparent from record

e. However, tribunal may rectify its order if the mistake is brought to its notice by Commissioner or other party to appeal within period of 3 months of date of such order. Opportunity of being heard to be granted in case such rectification results into enhancing an assessment or reducing a refund or input tax credit or otherwise increasing the liability.

f. The Appellate Tribunal to hear and decide the appeal, as far as possible, within a period of 1 year from the date of filing.

g. The Appellate Tribunal to communicate the copy of order to appellate authority / Revisional authority / original adjudicating authority, the appellant, the jurisdictional Commissioner, Commissioner of State Tax or Union Territory Tax.

e. The jurisdictional officer shall issue a statement in FORM GST APL-04 clearly indicating the final amount of demand confirmed by the Appellate Tribunal.

Section 114 – Financial and administrative powers of President

This section pertains to the financial & administrative powers of the President over the National Bench and Regional Benches of the Appellate Tribunal..

The President is empowered to delegate his financial and administrative powers to any other Member or any officer of the National Bench and Regional Benches, on a condition that such Member or officer shall continue to act under the direction, control and supervision of the President while exercising such delegated powers.

Section 115 – Interest on refund of amount paid for admission of appeal

Where an amount paid by the appellant under sub-section (6) of section 107 or under sub-section (8) of section 112 is required to be refunded consequent to any order of the Appellate Authority or of the Appellate Tribunal, interest at the rate specified under section 56 shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount.

Analysis- This section provides for interest on delayed refund of pre-deposit made while filing the appeal .

• Interest at the rates specified in Section 56 (9% as specified) shall be payable on refund of pre-deposit.
• Such interest to be calculated from the date of payment of such pre-deposit till the date of refund

Section 116 – Appearance by authorised representative

This section provides for appearance by authorised representative in proceedings or appeals except in circumstances where personal appearance is required for examination or oath or affirmation.

• Authorised representative means

a. relative or regular employee

b. Practising Advocate

c. Practising CA, CWA or CS

d. A retired government officer who had worked for not less than 2 years in a post not lower in rank than Group-B gazetted officer

e. Goods and Services Tax Practitioner

• Any person, who has retired or resigned after serving more than 2 years in the indirect tax departments of Government of India or any State Government as a gazetted officer, shall not be entitled to appear as authorised representative for a period of 1 year from the date of retirement or resignation.
• Any person,

— who has been dismissed or removed from government service

— who is convicted of an offence under CGST Act, SGST Act, IGST Act, UTGST Act or under erstwhile laws

— who is found guilty of misconduct by the prescribed authority shall not be qualified as authorised representative

• Any person, who has become insolvent, shall not be qualified as authorised representative during the period of insolvency.
• Any disqualification under SGST Act or UTGST Act shall be construed as disqualification under CGST Act.

Section 117 – Appeals to High Court

This section provides for appeal to High Court by any person aggrieved by an order passed by State Bench or Area Benches (Appellate Tribunal)

a. The High Court may admit an appeal if it is satisfied that the case involves a substantial question of law

b. No appeal shall lie before a High Court if such order is passed by National Bench or Regional Benches. In other words, appeal shall be filed before High Court if such order is passed by State bench or Area benches of the Appellate Tribunal.

c. Appeal has to be filed in the Form GST APL 08, precisely stating the substantial question of law involved, within 180 days from the date of receipt of order appealed against accompanied by prescribed fee.

d. The High Court is empowered to condone the delay in filing appeal.

e. On being satisfied, High Court shall formulate a substantial question of law.

f. Appeal to be heard only on the question so formulated and the respondent shall be allowed to argue that the case does not involve such question.

g. The High Court may hear the appeal on any other substantial question of law not formulated by it after satisfying, for reasons to be recorded, of involvement of such question in the case.

h. The High Court may determine any issue which has not been determined or has been wrongly determined by the State Bench or Area Benches.

i. Appeal to be heard by a Bench of not less than 2 Judges of High Court and shall be decided in accordance with the majority of opinion of such Judges

j. Difference of opinion on any point shall be referred to one or more of the other Judges of High Court and such point shall be decided according to the opinion of majority of Judges who have heard the case including those who first heard it.

k. The effect of judgment of High Court shall be given on the basis of a certified copy of the judgment.

l.The provisions of Code of Civil Procedure relating to appeals to High Court shall apply to appeals under this section.

Section 118 – Appeal to Supreme Court

This section provides for appeal to Supreme Court.

a) An appeal can lie with the Supreme Court in case of:

• Any judgement or order passed by National Bench, Regional Benches of Appellate Tribunal or High Court.
• The High Court must certify the Judgement/order to be fit one for appeal to the Supreme Court. When an appeal is reversed, or varied, the effect shall be given to the order of the Supreme Court on the question of law so formulated and delivered
• The said judgement shall clearly indicate the grounds on which the decision is founded.
• Apart from this, the Supreme Court is empowered to frame any substantial question of law not formulated by any lower authority if it is satisfied that the case before it involves such question of law

Section 119 – Sums due to be paid notwithstanding appeal etc.

The sums due to the Government as a result of an order passed by the Appellate Tribunal or High Court shall be paid notwithstanding the fact that an appeal has been preferred before the High Court or Supreme Court, as the case may be.

Section 120 – Appeal not to be filed in certain cases

This section provides for non-filing of appeal by the tax authorities in certain cases.

• On recommendation of Council, the Board may issue order or instructions or directions fixing monetary limits for the purpose of regulating the filing of appeal or application by Officer of central tax.
• On recommendation of Council, the Board may issue order or instructions or directions fixing monetary limits for the purpose of regulating the filing of appeal or application by Officer of central tax.
• No party in appeal / application shall contend that the Officer has acquiesced (agreed / consented) in the decision on the disputed issue by not filing an appeal / application.

The Appellate Tribunal or court hearing such appeal / application shall have regard to the circumstances under which appeal / application was not filed by the Officer in pursuance of such order / instructions / directions.

Section 121 – Non-appealable decision and orders

This section prescribes decisions or orders which are non-appealable

1. No appeal shall lie against any decision / order taken / passed by Officer of central tax if such decision / order relates to any one or more of following matters –

• Transfer of proceeding from one officer to another officer;
• Seizure or retention of books of account, register and other documents;
• Order sanctioning prosecution under the Act
• Order passed U/s.80 related to payment of tax & other amount in instalments.

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