The necessary provisions regarding filing an appeal to Appellate Authority has been provided under CHAPTER XVIII- APPEALS AND REVISION [SECTION 107 TO 121] of the Central Goods and Services Tax Act, 2017 (‘CGST Act, 2017’) supplemented with CHAPTER XIII- APPEALS AND REVISION [RULE 108 TO 116].
Pursuant to the provisions of Section 107(1) of the CGST, Act, 2017“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 Service Tax 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.”
It means any taxpayer or an unregistered person aggrieved by any decision or order passed against him by an Adjudicating Authority, may appeal to the Appellate Authority, within three months from the date on which the said decision or order is communicated to such person. The pre-condition to file an appeal to the Appellate Authority, is that order must be passed by the Adjudicating Authority for the taxpayer or an unregistered person.
Every appeal under Section 107(1) shall be in such form and shall be verified in such manner as may be prescribed. To file an appeal before Appellate Authority, the necessary form has been prescribed under Rule 108. Pursuant to Rule 108(1), an appeal to the Appellate Authority under sub-section (1) of Section 107 shall be filed in FORM GST APL-01, along with relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
Further, Adjudicating Authority has been defined under Section 2(4) of the CGST Act, 2017 as under –
“Adjudicating Authority” means any authority, appointed or authorised to pass and order or decision under this Act, but does not include Central Board of Indirect Taxes and Customs, the Revisional Authority, the Authority for Advance Ruling, Appellate Authority for Advance Ruling, the National Appellate Authority for Advance Ruling, the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of Section 171.
By perusal of the definition of Adjudicating Authority it is much clear that appeal can not be filled before Appellate Authority regarding order or decision passed by the following-
i) Central Board of Indirect Taxes and Customs,
ii) the Revisional Authority,
iii) the Authority for Advance Ruling,
iv) Appellate Authority for Advance Ruling,
v) the National Appellate Authority for Advance Ruling,
vi) the Appellate Authority,
vii) the Appellate Tribunal and
viii) the Authority referred to in sub-section (2) of Section 171 [the Authority constituted for determining Anti Profiteering measure]
Further, as per Section 121 of the CGST Act, 2017, no appeal shall lie against any decision taken or order passed by a CGST officer if such decision taken or order passed relates to any one or more of the following matters, namely:
i) an order of the Commissioner or other authority empowered to direct transfer of proceedings from one officer to another officer; or
ii) an order pertaining to the seizure or retention of books of account, register and other documents; or
iii) an order sanctioning prosecution under CGST Act; or
iv) an order passed under section 80 of the CGST Act (payment of tax in instalments).
It is stated that the list of orders or decisions passed under CGST Act or the State Goods and Services Tax Act or the union Territory Goods and Service Tax by an Adjudicating Authority may be long and categorisation of these is necessary to identified the dispute between the appellant and department. By referring the user manual for filing an appeal against demand order (Form GST APL-01), the following categories has been mentioned under the head ‘Category of the case under dispute’
1. Misclassification of any goods or services or both;
2. Wrong applicability of a notification issued under the provisions of this Act;
3. Incorrect determination of time and value of supply of goods or services or both;
4. Incorrect admissibility of input tax credit of tax paid or demand to have been paid;
5. Incorrect determination of the liability to pay tax on any goods or services or both;
6. Whether applicant is required to be registered.
7.Whether any particular thing done by the applicant results in supply of goods or services or both;
8. Rejection of application for registration on incorrect ground;
9. Cancellation of registration for incorrect reasons;
10. Transfer/initiation of recovery/tax collected not paid to Government;
11. Tax wrongfully collected/Tax collected not paid to Government;
12. Determination of tax not paid or shot paid;
13. Refund on wrong ground/Refund not granted/Interest on delayed refund;
14. Fraud or wilful suppression of fact;
15. Anti-Profiteering related matter;
Disclaimer: Nothing contained in this document is to be construed as a legal opinion or view of either of the authors whatsoever and the content is to be used strictly for educative purposes only.