In this article, we will discuss about...
Introduction
Any person aggrieved with the decision of the adjudicating authority under GST law, then as per section 107 of the CGST Act, 2017, he has a right to file an appeal against such order to the first appellate authority. This article is all about the procedure to be followed by the appellant for filing an appeal to the first appellate authority.
The time limit for filing the 1st Appeal
He can file the appeal within 3 months from the date of communication of the order of adjudicating authority which can be further extended by 1 month if there is a sufficient cause.
Note: Here time limit of 3 months has been defined because section 78 of the CGST Act, 2017 defines that where the order of demand has been passed under section 73 (under Bonafide cases) or section 74 (under Mala fide cases), the department gives 3 month time period to the assessee to deposit the demand amount or file an appeal otherwise recovery proceedings shall be initiated against such person.
The form used to file the appeal
A person may file an appeal in form GST APL-1, which he can file electronically or otherwise.
Pre-deposit Amount
The assessee is able to file the appeal only when he has deposited the following amount:
- Tax amount along with the interest, penalty or fees, if any, relating to the demand which he has already been accepted
- 10% amount of Tax under the CGST Act, 2017 as per the order of adjudicating authority which has to be deposited maximum up to Rs.25 crore
Note: Here we have explained the amount of pre-deposit under CGST Act, 2017, if he also wants to file appeal relating to the demand of SGST then the limit shall get double.
Note: The taxable person is not the only party who has the right for filing the appeal, but the department can also file the appeal to the appellate authority.
Till now, we have discussed the points on behalf of the taxable person, now let’s understand these points on behalf of the department.
Appeal by department
So, the commissioner, on its own motion or upon the request of any other officer subordinate to him, examines the records of the order of adjudicating authority. If he has a doubt on the legality or propriety of the order then he may direct any officer to file the appeal to first adjudicating authority.
The time limit for filing of the appeal
The appeal can be filed by the officer of a department within 6 months from the date of communication of order which can be further extended by 1 month if there is sufficient cause for delay.
The form used to file an appeal
Department officers can file an appeal in form GST APL-3, which he can file electronically or otherwise.
Pre-deposit Amount
There is no pre-deposit amount has been specified in the law where the appellant is department itself.
Procedure to be followed by the appellate authority for passing the orders
We have discussed on the behalf of taxable person and department, now let’s discuss on the behalf of the appellate authority
- Appellate Authority has the power to confirm or modify or annul the order of adjudicating authority but it cannot pass the order for referring back.
- It can increase the amount of penalty or fees or interest only after giving an opportunity of being heard to the assessee.
- The Appellate Authority shall adjourn the hearing from time to time if there is a sufficient cause. However, the maximum adjournment is allowed 3 times to a party i.e. 3 times for appellant and 3 times to the respondent. The authority shall write the reason for an adjournment in writing.
- The law provides an advisory time limit of 1 year within which the appellate authority should have to pass the order but this time limit is not mandatory. Also, the period of stay by order of court or tribunal shall be excluded in these time limits.
- After disposal of the case, the appellate authority shall communicate the order to the appellant, respondent and adjudicating authority.
- The order passed by the appellate authority shall be final and binding on both parties.
- The appellate authority may admit the additional grounds of appeal which was not mentioned in the grounds of appeal where such error or omission is not wilful or for fraudulent intention.
The GST law has been drafted very cleverly. Here even if you have the knowledge about this law then you know about how deep, the lawmaker has thought, while making these provisions.
If the department officer fails to file an appeal within a period of 6 months (Extension of 1 month), then also they have the power to make changes in the order of adjudicating authority and this can be done by the revisionary authority.
Revisionary Authority, on its own motion or on the request of Commissioner of CGST or SGST examines the records of the order of adjudicating authority and found it be erroneous or illegal or improper or is of the opinion that all the material has not been taken into the account while giving the decision then such revisionary authority shall after giving an opportunity of being heard to the person and making further inquiry, pass such order as it deems fit including the order of increasing or decreasing penalty or interest or fees or annulling the order of adjudicating authority.
The time limit for making such revision
The revisionary authority may pass the order under section 108 of the CGST Act, 2017 if the time limit of 6 months plus 1 month with extension has been expired but the maximum time is 3 years within which the authority may pass the order.
Similar to the appellate authority, where the stay has been made by the court or tribunal then such period shall be excluded while calculating the period of 6 months or 3 years.
If the person has been aggrieved with the order of appellate authority or revisionary authority then he may file a further appeal to the appellate tribunal and then high court and at last, at Supreme Court.
Summary
Let me summarise the whole article into the tabular form:
| S. No. | Particulars | Appeal By Assessee | Appeal by a department officer |
| 1 | The time limit for appeal | 3 Months | 6 Months |
| 2 | Extension | 1 Month | 1 Month |
| 3 | Form for appeal | GST APL-01 | GST APL-03 |
| 4 | Pre-deposit | The whole amount admitted Plus 10% of tax of disputed amount which can be maximum up to Rs.25 crore under the CGST Act, 2017 | Nil |
| 5 | Adjournment | 3 Times | 3 Times |
| 6 | Other Points | NA | Even after expiry of 6 months but before 3 years, department officer may request the revisionary authority to verify the geniuses of the order of Adjudicating authority |