Post issuance of any order by Appellate Authority, next level of review application lies with the GST Appellate Tribunal. GSTAT reviews the order passed by Appellate authority and then issues the order to confirm, modify or set aside the order of Appellate Authority based on its finding and analysis.
CGST Act 20187 provides following 4 stages of appeal and review:
- Appeal to GST Appellate Authority
- Appeal to GSTAT
- Appeal to High Court
- Appeal to Supreme Court
In this article we will discuss the 2nd stage of appeal, i..e, appeal to Goods and Service Tax Appellate Tribunal (“GSTAT” or “Appellate Tribunal”).
1. In which cases an appeal is filed before the Goods and Service Tax Appellate Tribunal (“GSTAT”)?
As per the section 109 of the Central Goods and Service Tax Act, 2017 (“CSGT Act, 2017”), if a person is not satisfied with the decision of Appellate Authority then he can file an appeal to Appellate Tribunal.
The GST Appellate Tribunal simply means the second appeal forum under GST which is higher than the appellate authorities. It is also the forum of resolving disputes related to state GST and center GST.
2. What are the Levels of GSTAT (Section 109 of CGST Act)
- Under Section 109(1) of CGST Act, the government has constituted an Appellate Tribunal known as Goods and Services Tax Appellate Tribunal (“GSTAT”) on recommendations of the GST council. It is formed for the hearing of appeals against the orders passed by the Appellate Authority.
- Two types of GSTAT Benches are set up namely National Bench and State Benches. The National Bench is set up with its further sub-benches known as Regional Benches. The State benches are set up with its further sub-benches known as Area Benches.
2.1 National Bench and its Regional Benches
- One National Bench is established under GST Act and same is situated in New Delhi and it is presided by the President. Further, National Bench consists two Technical Members, one is of Centre and another is of State.
- Number of Regional Benches to be set-up are decided by the government on the recommendations of the GST council.
- If any of the matter under appeal is related to place of supply then such matter shall be handled by The National Bench or Regional Benches of the Appellate Tribunal. For other matters, appeal shall be heard by the state benches or Area Benches.
2.2 State Bench and its Area Benches
- The Government shall specify the name of estates or Union Territory for which a State Bench shall be established.
- On request of state government, Government shall decide number of Area benches to be established in a state on recommendation of council.
- An appeal shall be filed with State bench or Area bench against order of Appellate Authority where matter under dispute does not involve determination of Place of supply.
3. Who can file an appeal with the Appellate Tribunal?
An application with Appellate Tribunal can be filed by any person who is aggrieved by the order of Appellate Authority. Therefore, appeal can be filed by either:
3.1 納税者による上訴審判所への上訴
- 納税者が上訴当局の決定に不服がある場合、CGST法に定められた手続きに従い、上訴審判所に申し立てを行うことができます。
3.2 当局による上訴審判所への上訴
- 委員会は、上訴当局または再審当局が下した決定の記録を、職権により取り寄せる権限を有します。これは、州税局長または連邦直轄領税局長の要請に基づいて行われる場合もあります。
- 局長は、上訴当局による決定が適法かつ適切であるかを確認するため、当該記録を審査・検討することができます。
- 局長が上訴当局の決定に納得できない場合、異議申し立ての対象となる決定の通知日から6か月以内に、部下に対して上訴審判所に申請を行うよう指示することができます。上訴すべき事項については、局長が決定します。
4. 上訴審判所への上訴が可能な場合
- 2017年CGST法第112条(1)に基づき、GST上訴当局によるCGST法第107条に基づく決定、または再審当局によるCGST法第108条に基づく決定に対して、上訴審判所に上訴することができます。
5. 上訴審判所への上訴手続き
5.1 上訴審判所への上訴期限
- 上訴審判所への上訴は、異議申し立ての対象となる決定の通知日から3か月以内に行う必要があります。
5.2 上訴当局への上訴に使用する関連フォーム
- 上訴審判所への上訴は、関連書類を添えてGST APL-05フォームで提出する必要があります。上訴は電子的またはその他の方法で提出可能です。
- 申請の提出後、システムにより直ちに仮受付番号が発行されます。
5.3 GSTATへの異議申し立て対象決定の提出
- 上訴申請の提出後、上訴の対象となる上訴当局の決定の認証謄本を、適用される手数料およびその他の書類とともに、GST APL-05フォームにて7日以内に登録官へ提出しなければなりません。
- すべての書類の提出後、GST APL-02フォームにて上訴番号が記載された最終受付票が発行されます。
5.4 上訴の提出日とみなされる日
- 上訴当局の決定の認証謄本およびその他の書類が7日以内に提出された場合、申請の提出日は仮受付票が発行された日となります。
- ただし、提出が遅れた場合は、GST APL-02フォームによる受付票の発行日が申請の提出日とみなされます。
例：
- GST APL-05フォームによる申請提出日：2020年1月1日
- 仮受付票の発行日：2020年1月1日
Case-1:
Date of filing of supporting documents5th January, 2020Date of generation of final Acknowledgment in Form GST APL-025th January, 2020Date considered as date of filing of appeal1st January, 2020
Case-2
Date of filing of supporting documents10th January, 2020Date of generation of final Acknowledgment in Form GST APL-0210th January, 2020Date considered as date of filing of appeal10th January, 2020
5.5 Minimum disputable amount for filing appeal with GSTAT
- Where the amount involved in appeal, i.e., the tax amount, input tax credit amount, Difference in tax or Input Tax credit, Fine, fee or penalty is less than INR 50,000, then Appellate Tribunal may refuse to admit any such appeal.
5.6 Filing of Memorandum of Cross Objection by Counter Party
- On filing of application, GSTAT shall issue a notice to the counter party informing him about filing of appeal application.
- On receipt of such notice, counterparty shall file memorandum of cross-objections within 45 days from date of receipt of such notice. Appellate Tribunal shall dispose off such memorandum as if it was an appeal presented before GSTAT.
- Memorandum of Cross objection shall be filed by the counterparty in form GST APL-06.
5.7 Time limit of admission of appeal by GSTAT
- Appellate Tribunal shall admit the appeal:
- In case of appeal: within 3 months from date of expiry of 3 months from date of communication of impugned order. E.g.
Date of Communication of Impugned order1st January, 2020Time limit of filing of Appeal before Appellate Tribunal1st April, 2020Time limit for admitting such appeal by appellate Tribuna1st July, 2020
- If case of Memorandum of Cross-Objections: Within 45 days after expiry of 45 days from date of receipt of notice
Date of Communication of Notice by GSTAT to Counter Party1st January, 2020Time limit of filing of Memorandum of Cross Objection by Counterparty15th February, 2020 (1st January, 2020+ 45 Days).Time limit for admitting such appeal by appellate Tribuna1st March, 2020 (45days from 15th February, 2020)
5.8 Pre-deposit to be made for filing appeal with GSTAT
- Appeal with GSTAT will be filed only after payment of below liabilities.
- Appellate has deposited full amount of undisputed amount of tax, interest, fine, fee and penalty; and
- Appellant has paid 25% of the disputed amount, in addition to the amount paid at the time of filing of appeal before Appellate Authority. However, such amount shall not exceed IN 50 Crores
5.9 Fee for filing appeal to appellate tribunal
- Fee for filing of appeal with GSTAT shall be INR 1,000 for every 1,00,000 Rupees amount involved subject to maximum of INR 25,000.
- Further, There will be no fee for application made for rectification of errors.
6. Production of Additional evidence before Appellate Tribunal
- An appellant shall not be allowed to produce any additional documents or evidence, before Appellate Tribunal which was not produced earlier before the Appellate Authority.
- However, in following cases, additional evidence shall be allowed:
- where evidence proposed to be admitted was refused by the Appellate authority; or
- where the appellant could not produce such evidence before Appellate Authority due to reasonable cause and such evidence which was called by Appellate Authority or such evidence is relevant to any ground of appeal; or
- where the Appellate authority has passed the impugned order without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
- No additional evidence shall be allowed unless Appellate Tribunal records the reasons for allowing such additional evidence.
- Appellate Tribunal shall not admit the additional evidence unless the reasonable opportunity of show cause has been given to Appellate Authority:
- to examine the evidence or document or to cross-examine any witness produced by the appellant; or
- to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule
- However, the Appellate Tribunal may ask for any document on its own, whether presented before Appellate Authority or not. In such a case, provisions of Rule 112 shall not apply.
7. Order by Appellate Tribunal
- Appellate Tribunal shall provide the reason opportunity of being heard to both the parties.
- Appellate Tribunal shall pass the order as it thinks fit. GSTAT may confirm, modify, set aside the order issued by Appellate Authority. GST may also refer the case back to the Appellate Authority, or the Revisional Authority or to the original adjudicating authority for a fresh adjudication or decision after taking additional evidence, if necessary.
- During the course of proceedings, GSTAT may grant the Adjournment to both the parties subject to maximum of 3 adjustments to a party.
- Any error in the order can be rectified by the Appellate Tribunal within 3 months from date of passing of order.
- The Appellate Tribunal shall, as far as possible, hear and decide every appeal within a period of one year from the date on which it is filed.
- The Appellate Tribunal shall send a copy of every order passed to the Appellate Authority or the Revisional Authority, or the original adjudicating authority, as the case may be, the appellant and the jurisdictional Commissioner or the Commissioner of State tax or the Union territory tax.
7. Appeal against order of GSTAT
Order issued by GSTAT shall be binding unless an appeal is filed with the High Court under section 117 of CGST Act.
.avif)
