GST

“APPEALS & ALTERNATE REMDIES”

SURAT CHAPTER OF WIRC of ICAI

Dated 08/07/2017

A Presentation by
CA. (Dr.) Shailendra Saxena
B.COM,SAP(FICO),ACS,FCMA,FCA,DISA(ICAI).Ph.D.
1
GST

APPEALS & REVISION

2
APPEALS & RIVISION: OVERVIEW
 The GST Law provides for the following hierarchy for
appeals:
1. Appeal to First Appellate Authority
2. Revision by Commissioner (applicable to SGST)
3. Appeal to Appellate Tribunal
4. Appeal to High Court
5. Appeal to Supreme Court
 There will be differences in the appellate mechanism
available to the Tax Administration between CGST and
SGST.
 GST Law specifically empowers the department to file
appeals before the First Appellate Authority and the
Appellate Tribunal in respect of CGST, for SGST it
provides for powers to revise adjudication orders. 3
THE GST LAW PROVIDES FOR A FOUR-LAYERED
APPEAL STRUCTURE

Appeal against lies to the Appeal level Sections of GST

the orders following autho law
passed by…. rity

Adjudicating First 1ST 107

Authority Appellate
Authority
First Appellate Appellate 2nd 112
Authority Tribunal(With
in 3 Months)

Appellate High 3rd 117

Tribunal Court(With in
180 days)
High Court Supreme 4th 118 4
Court
APPEALS & RIVISION: OVERVIEW
 The provisions regarding appeal to High Court, appeal to
Supreme Court are common between CGST and SGST.
 IGST Law does not have separate provisions for appeals. The
provisions for CGST shall also apply IGST as well.
 In present sales tax / VAT Regime which provides for
constitution of a special authority called Central Sales Tax
Appellate Authority.
 (CSTAA) for resolution of inter-State disputes, the GST Law
provides that disputes involving two States or the Centre and
any State shall directly be taken to Supreme Court from
Appellate Tribunal.
 There are mandatory pre-deposit conditions for filing appeal
before the First Appellate Authority and the Appellate Tribunal.
The presumption appears to be that no separate stay
application for stay of recovery would be required once the 5
pre-deposit conditions are met.
AUTHORIZED OFFICER BEFORE GST OFFICER FIRST
APPELLATE AUTHORITY AND APPELLATE TRIBUNAL, NAMELY:-
1. Relative or regular employee of Taxpayer

2. Advocate entitled to practice in India

3. Chartered Accountant, Cost Accountant or a Company

Secretary holding valid Certificate of Practice

4. Person with qualifications specified by Central Government.

5. Retired officer of commercial tax department of any state

govt./UT/Board not below the rank of Group-B Gazetted officer
for a period of not less than 2 years

6.Any person who has been authorised to act as a goods and 6

services tax practitioner on behalf of the concerned registered
person.
APPEALS TO FIRST APPELLATE AUTHORITY
OFFICE (SEC.107)
 Any person aggrieved by any decision or order passed
against him under this Act by an adjudicating authority,
may appeal to the prescribed First Appellate
Authority.(Assessee Appeal)
 The authorized officer makes an application to the First
Appellate Authority, such application shall be dealt with by
the First Appellate Authority.(Dept. Appeal)
 Every appeal shall be filed within three months from the
date on which the decision or order sought to be appealed
against is communicated to the Commissioner of GST, or,
as the case may be, the person preferring the appeal.
 No appeal shall be filed unless the appellant has deposited a
sum equal to ten per cent (Pre-Deposit) of the amount in dispute
arising from the said order, in relation to which the appeal has 7

been filed.
NO APPEAL SHALL BE FILED, UNLESS THE APPELLANT HAS
DEPOSITED A SUM EQUAL TO FULL(PART) OR TEN PERCENT OF
THE AMOUNT IN DISPUTE ARISING FROM THE SAID ORDER, IN
RELATION TO WHICHTHE APPEAL HAS BEEN FILED.[SEC.
107(6)]
ISSUE NEEDS TO BE CLARIFIED:
 The quantum of pre-deposit amount is more than the current prescribed limits. Thus it
should be only 7.5%. As per current provisions, there is an upper limit of Rs 10
crores as mandatory pre-deposit. The said limit should be incorporated in the GST
provisions also.
 Circular No 984/8/2014-CX., dated 16-9-2014 has clarified with respect to the manner
of computation of pre-deposit. The said circular also clarifies that the no coercive
recovery proceedings will be initiated during the pendency of the appeal.
 The said clarification should be incorporated in the statutory provisions itself. also
clarifies that amounts paid under investigation / audit have to be included as part of
pre-deposit amount. The same needs to be incorporated in the statutory provisions.
 It is should be clarified that the mandatory pre-deposit is not required for the
interest amount.
 The mandatory pre-deposit can be paid from utilization of input credit. The
statutory provisions should specifically incorporate the same.
8
REVISIONAL POWERS OF COMMISSIONER (SEC. 108)
• The Commissioner may on his own motion or upon information
received by him, call for and examine the record of any proceeding
under this Act, and if he considers that any decision or order
passed under this Act by any officer subordinate to him is
erroneous in so far as it is prejudicial to the interest of the
revenue, he may, if necessary, stay the operation of such decision
or order for such period as he deems fit and after giving the
person concerned an opportunity of being heard.
• Issue No.1:-The concept of revision power of Commissioner is not
present under the Central Taxes. Under the GST regime the
provisions of CGST and SGST should be pari materia. Further the
power of revision of orders is mis-used and thus increases
litigation. Therefore no power of revision should be available
under SGST law also.
• Issue No.2:-Section 108 under SGST law is harsh.

shailendra.saxena@jlnus.com
REVISIONAL POWERS OF COMMISSIONER [SEC. 108
(2)(B)]
• The Commissioner shall not exercise any power under sub-section (1) (b) if more than
three years have expired after the passing of the decision or order sought to be
revised.

• Issue No.1:-If the decision or order passed under this Act by an officer subordinate to
the Commissioner involves an issue on which the Appellate Tribunal or the High Court
has given its decision which is prejudicial to the interest of revenue in some other
proceedings and an appeal to the High Court or the Supreme Court against such
decision of the Appellate Tribunal or as the case may be, the High Court is pending, the
period spent between the date of the decision of the Appellate Tribunal and the date of
the decision of the High Court or as the case may be, the date of the decision of the
High Court and the date of the decision of the Supreme Court shall be excluded in
computing the period.

• Issue No.2:-the pendency of an appeal by any other assessee and anywhere in India
will result in reopening of the proceedings by an assessee. Therefore the reversionary
proceedings can be initiated even after the period of 8-10 years by the reversionary
authority. Thus, the scope of revision will be very wide. The above provisions should
be made applicable only when the issue is pending in respect of the appeal filed by or
against the same assessee and in the same State. Therefore the provisions should
apply only with respect to the proceedings in an appeal which are qua-assessee and
qua-State. 10

shailendra.saxena@jlnus.com
APPEALS TO THE APPELLATE TRIBUNAL [SEC.112(2)]

 The Appellate Tribunal may, in its discretion, refuse to admit

any such appeal where the tax or input tax credit involved or
the difference in tax or input tax credit involved or the
amount of fine, fee or penalty determined by such order,
does not exceed Fifty Thousand rupees.
ISSUE:-As per the current provisions, the Appellate Tribunal
cannot refuse to admit an appeal below the specified limit which
involves the question relating to rate of duty or valuation of
goods. The said exception has been made since the dispute
relating to determination of rate of duty and valuation are
recurring in nature and therefore needs to be adjudged
irrespective of the quantum. There is no provision under the
GST law for the same.
The limit of Rs.50,000/- prescribed for admitting of the appeal
before the Appellate Tribunal should not apply in cases where
11
the issue involved is of rate of duty or valuation.
“

RECTIFICATION OF MISTAKE BY TRIBUNAL:

THE APPELLATE TRIBUNAL MAY AMEND ANY ORDER PASSED BY IT UNDER
SUB-SECTION (1) SO AS TO RECTIFY ANY MISTAKE APPARENT FROM THE
RECORD, IF SUCH MISTAKE IS NOTICED BY IT ON ITS OWN ACCORD, OR IS
BROUGHT TO ITS NOTICE BY THE COMMISSIONER OF GST OR THE OTHER
PARTY TO THE APPEAL WITHIN A PERIOD OF THREE MONTHS FROM THE
DATE OF THE ORDER: [SEC. 113(3)]

 Appellate Tribunal has given notice to him of its intention to do so and

has allowed him a reasonable opportunity of being heard.
ISSUES:-

 Currently the time limit for rectification of mistake by Appellate

Tribunal is 6 months from the date of the order. Thus, the time limit
provided in the said section is very less.

 The time limit for rectification of mistakes in the order should be

increased from 3 months to 6 months. 12
APPEAL TO THE HIGH COURT (SEC. 117 )
Who can file Order appealed Time limit to
appeal against file Appeal
Appeal to Commissioner of Order of Appellate Within 180 days
High GST or Tribunal involving of
Court any other party substantial communication
aggrieved question of law to the
concerned party

Not appealable – Delayed filing

Order of Appellate allowed on show
Tribunal involving of sufficient
dispute between cause
two states, or a
state and centre
regarding nature of
supply or place of
supply
13

shailendra.saxena@jlnus.com
APPEAL TO THE SUPREME COURT (SEC. 118 )
Who can file Order appealed Time limit to
appeal against file Appeal
Appeal to Not specified Order of High As per the
Supreme Court. Supreme Court
Court Rules and Code
of Civil
Procedure

As per the Order of Appellate

Supreme Court Tribunal involving
Rules and Code dispute between
of Civil two states, or a
Procedure state and centre
regarding nature of
supply or place of
supply

14

shailendra.saxena@jlnus.com
THANKS!!
ANY QUESTIONS ?
CONTACT FOR POST SESSION
QUERY:
CMA. (Dr.) Shailendra Saxena
Bharuch
E-mail: shailendra.saxena@jlnus.com
 Cell: +91-93774-10260 | Website: www.jlnus.com
15

shailendra.saxena@jlnus.com