Introduction: The process of filing appeals under Section 107 of CGST Act, 2017, read with Rule 108 of CGST Rules, 2017, is a point of contention among tax practitioners. The concern revolves around whether the appeal can be dismissed due to the absence of a physical order. This analysis seeks to clarify this ambiguity, reflecting on both the statutory provisions and a significant judgment from the Calcutta High Court.
Historical Context and Provisions of Rule 108:
1. Statutory Provisions for Appeals: Section 107 in conjunction with Rule 108 facilitates taxpayers or the department to contest decisions/orders passed by adjudicating authorities under various GST Acts. Section 107 mandates a pre-deposit of 10% for the admittance of appeals initiated by taxpayers, with an automatic stay on the remaining balance.
2. Initial Requirements of Rule 108: As originally framed, Rule 108 obligated the appellant to submit a certified copy of the decision/order contested within seven days of filing the appeal. This provision resulted in multiple appeals getting rejected for non-compliance.
3. Modification to Rule 108: As of Notification No. 26/2022-Central Tax dated 26.12.2022, the requirements were altered. If the contested order/decision is available on the common portal, there’s no need for a physical submission. However, in the absence of a digital copy on the portal, the appellant must provide a self-certified copy within seven days.
Judicial Pronouncement and its Implication:
Rama Shanker Modi vs. the Assistant Commissioner (WPA 15639 of 2023): In a recent judgment, the Hon’ble Calcutta High Court examined this very issue. The Court pronounced that the mere non-submission of a physical order within the prescribed timeframe cannot constitute a valid reason for rejecting an appeal.
Conclusion: Given the recent amendment to Rule 108 and the stance adopted by the Calcutta High Court, it becomes clear that the non-submission of a physical copy shouldn’t be grounds for dismissing an appeal under Section 107. It’s pivotal for tax practitioners and appellants to be abreast of these changes to safeguard their rights in the appeal process.
Extract of amended Rule 108 of CGST Rules, 2017
(1) An appeal to the Appellate Authority under sub-section (1) of secton107 shall be filed in Form GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
(2) The grounds of appeal and the form of verification as contained in Form GST APL-01 shall be signed in the manner specified in rule 26.
(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in Form GST APL-02 by the Appellate Authority or an officer authorized by him in this behalf.
Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the Form GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy.
and because of the above mentioned sub rule 3 of Rule 108 it was mandatory for the tax payer to submit the certified copy of decision or order appealed against with in seven days from the date of filing the appeal u/s 107, and thus it becomes the ground for rejection of appeals in several cases and therefore vide Notification No. 26/2022-Central Tax Dated 26.12.2022 sub rule 3 was substituted as:
(3) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in Form GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgment shall be considered as the date of filing of appeal:
Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self certified copy of the said decision or order within à period of seven days from the date of filing of FORM GST APL-01 and a final acknowledgement, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf., and the date of issue of the provisional acknowledgment shall considered as the date of filing of appeal:
Provided further that where the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-01, the date of submission of such copy shall be considered as the date of filing of appeal.
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