Preparation of an appeal before the Tribunal
1) Introduction:
Once an order or proceedings is received from an appellate authority or revisional authority against which appeal lies to GST Appellate Tribunal (for short GSTAT) and the appellant has reason to be aggrieved by any finding, conclusion or observation made by the authority passing the order, the appellant may think of filing an appeal with GSTAT. Once a decision is taken to file an appeal, he has to start preparing for the appeal.
The proceedings before the GSTAT will be more formal than they were before the lower authorities and particularly before the Appellate Authority. The members [i.e. State President and Technical Members (Centre and State)] of the GSTAT are sticklers for rules. Therefore, the appellant may take care to see that the appeal does not suffer technical objections.
In this chapter it is proposed to deal with the preparation of an appeal and its presentation.
2) Appeal can be filed on a ground arising from the order appealed against:
One of the fundamental requirements of appeal before the GSTAT is that a ground of appeal should arise from any proceedings in respect of the order of the lower authorities. The appellant may take a ground in respect of any issue forming the subject matter of orders of any of the lower authorities. However,
If a ground is such as would require verification of facts and the lower authority did not have the opportunity of verifying those facts, the GSTAT most likely will remit the matter back to the lower authority where it requires the verification should be carried out. However, whether an issue with respect to law not rose before the Appellate Authority can be agitated before the GSTAT for the first time or not, is a question which is not free from doubt.
3) Drafting of grounds of appeal:
Before the appellant drafts the grounds of appeal, a thorough study of the GST Returns, copies of communications received from the proper officer from time to time, copies of show cause notice, replies filed in response to the show cause notice, copies of orders or proceedings or decision passed by the adjudicating authority, copy of the appellate order. These are necessary and important for the effective preparation of grounds of appeal.
4) Tips for drafting of grounds of appeal:
This is one of the most important exercises in the whole appellate proceedings. The appellant will keep in mind the scope of the Tribunal’s jurisdiction to entertain grounds of appeal, while drafting the grounds of appeal.
1. Every memorandum of appeal shall be written in English;
2. Grounds of Appeal have to be concise in contents;
3. Each ground should be given a distinct heads;
4. Grounds should not contain arguments or narration of anything or any event, even if such arguments or narrative are necessary to bring out the nature of dispute;
5. Grounds will be numbered consecutively.
5) Additional points for drafting grounds of appeal:
a) Grounds should be stated in simple language: The language of grounds of appeal should be simple and clear conveying exactly what is intended to be conveyed.
b) Use accepted legal language: A ground drafted in a complicated language may be unaccepted and may also in unfortunate situation, result in dismissal of appeal.
c) Avoid use of double negatives: Particular care should be taken to handle double negatives. Sentences intended to convey a negative meaning usually contain ‘not’ and its variants.
d) Use direct sentences: Another point to be kept in mind while drafting grounds of appeal is that as long as it is possible, ground should be stated in direct sentences.
e) Avoid reference to case law in grounds: To the extent possible a ground should avoid reference to a case law whether for or against the appellant.
f) Grounds without prejudice to other grounds: Though it is always understood that each ground of appeal is independent and without prejudice to other grounds.
6) General points about presenting case:
The following are general points that may be kept in mind while arguing a case.
1. Present points in a calm manner;
2. Be enough loud to be audible, not more;
3. Give pauses wherever necessary;
4. In case it is necessary to use brochure of the product to make a point, do that;
5. Modulate voice of the speech according to the force you want to attach to a point you are making;
6. Stop where judges want you to. Do not persist in continuing with arguments;
7. Do not defend indefensible. It will get you nowhere.
8. In case a query is put by judges and you have no ready answer, be forthright and admit that you do not have answer, rather than giving any evasive answer;
9. No personal attacks should ever be made against any authority including the Counsel or Departmental Representative of the opposite side;
10. In case any lapse is noticed by judges in any documents furnished by you, or in your conduct, and if there is substance in judges’ observation, do not hesitate to apologize. However, if you find judges’ observations miss something, bring that to their notice politely;
11. Try to show judges that if they hold contrary to propositions, they will be laying down a ratio binding not only the parties to the case, but also the future generation;
12. Do not make over emotional appeals to judges;
13. Close arguments with decorum and make clear what you expect from judges.
7) End Word
Arguing a case is an Art. It can be mastered by practice and more practice. Go to Court Room; observe great Counsels’ arguments, observe how judges put questions. Rehearsing a case before it is argued is also a good idea. Many good orators have practiced in front of mirror.
Disclaimer: – The contents of this article are for the educative information and does not constitute or purport to be an advice or opinion in any manner. The information provided is not intended to create an attorney – client relationship and is not for advertising or soliciting. The author does not intend in any matter to solicit work through this piece. He is not responsible for any error or mistake or omission in this piece of information or for any action taken or not taken based on the contents of this material.
Wish you a Happy Learning
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