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.
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 and if it were an appeal.
The time limit is fixed as 3 months from the date of communication of order or decision.
The time limit applies even for the departmental appeal / application filed consequent to order of Commissioner of CGST. 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.
The first appellate authority has powers to condone the delay in filing appeal. 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).
The first appellate authority has powers to allow additional ground not specified in the appeal memo. He has the powers to allow additional grounds if he is satisfied that the omission was not willful or unreasonable.
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.
10% of amount in dispute (however, for SGST, there are additional provisions for which the model law shall be further referred.
As per explanation to Section 79(6) of Model GST law the expression “amount in dispute” shall include
1. Amount determined under section 46 or 47 or 48 or 51;
2. Amount payable under rule — of the GST Credit Rules 201 —; and
3. Amount of fee levied or penalty imposed.
The FAA is empowered to pass an order enhancing the fee 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).
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 higher amount of pre-deposit not exceeding 50% of the amount in dispute.
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 goods case against the taxpayer.
The commissioner 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.
The Commissioner of SGST order for staying of operation of any order passed by his subordinates pending such revision.
There are fetters to the powers of Commissioner under SGST to revise orders of subordinates. The Commissioner shall not revise any order if
1. The order has been subject to an appeal under section 79 or under section 82 or under section 87 or under section 88 or
2. 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 model GST Law.
The Tribunal is having powers to refuse to admit the appeal, where the appeal involves:
1. Tax amount or
2. Input tax credit or
3. The difference in tax or
4. The difference in input tax credit involved or
5. Amount of fine,
6. Amount of fees or
7. Amount of penalty ordered
Less than Rs. 1,00,000/-, the Tribunal has discretion to refuse to admit such appeal. (Section 82(2) of model GST law).
The time limit within which appeal has to be filed before Tribunal is 3 months from the date of receipt of the order appealed against.
The Tribunal can condone delay in filing appeal before it beyond the period of 3 months. 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.
The time limit for filing memorandum of cross objections before Tribunal is 45 days from the date of receipt of appeal.
The differences in appeal (to Tribunal) provisions under CGST and SGST:
1. 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.
2. 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.
3. 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.
4. 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.
Interest becomes payable on refund of pre-deposit amount. As per Section 85 of model GST law 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.
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 Centre, have a difference of views regarding place of supply, then appeal against such order shall lie to the Supreme Court and not High Court.
The time limit for filing an appeal before the High Court is 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.
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