CBEC’s FAQs on Appeals, Review and Revision under GST
The FAQs related to Appeals, Review and Revision under GST as per compilation made by the NACEN of CBEC to acquaint stakeholders with the Model GST Law and its nuances, are as under:
Q 1. Whether any person aggrieved by any order or decision passed against him has the right to appeal?
Ans. Yes. Any person aggrieved by any order or decision passed against him has the right to appeal. It must be an order or decision passed by an “adjudicating authority”. However, some decisions or orders (as provided for in Section 93) are not appealable.
Q 2. When Commissioner of CGST feels that the order passed is not legal and proper, whether he can revise the order himself?
Ans. No. The Commissioner of CGST cannot revise the order. In the model law, for CGST and SGST, there are different provisions in this regard. For CGST, as per Section 79(2), the Commissioner of CGST if he finds an order or decision (passed by an adjudicating authority) to be not legal or proper, can pass an order setting out the points for determination where he is of the view that the order is not legal and proper and directing a GST officer sub-ordinate to him to file an application to First Appellate Authority (FAA). Such application is then treated by the FAA as if it were an appeal.
Q 3. What is the time limit to file appeal to First Appellate Authority?
Ans. The time limit is fixed as 3 months from the date of communication of order or decision.
Q 4. Whether this time limit applies even for the departmental appeal/application filed consequent to order of Commissioner of CGST?
Ans. Yes. It applies even for such applications filed which are to be treated as appeal and all the provisions of appeal are made applicable for such application as well.
Q 5. Whether the first appellate authority has any powers to condone the delay in filing appeal?
Ans. Yes. He can condone a delay of upto one month from the end of the prescribed period of 3 months for filing the appeal (3+1), provided there is “sufficient cause” as laid down in the proviso to section 79(4).
Q 6. Whether the first appellate authority has any powers to allow additional grounds not specified in the appeal memo?
Ans. Yes. He has the powers to allow additional grounds if he is satisfied that the omission was not wilful or unreasonable.
Q 7. The order passed by First Appellate Authority has to be communicated to whom?
Ans. First appellate authority has to communicate the copy of order to the appellant and the adjudicating authority with a copy to jurisdictional Commissioner of CGST and SGST.
Q 8. What is the amount of mandatory pre-deposit which should be made alongwith every appeal?
Ans. 10% of amount in dispute (however, for SGST, there are additional provisions for which the model law may be referred to, see question no 12 and 13).
Q 9. What is the amount in dispute?
Ans. As per explanation to Section 79(6) of MGL, the expression “amount in dispute” shall include– (i) amount determined under section 46 or 47 or 48 or 51; (ii) amount payable under rule——-of the GST Credit Rules 201…; and (iii) amount of fee levied or penalty imposed.
Q 10. Whether in an appeal the FAA can pass an order enhancing the quantum of duty/ fine/ penalty/ reduce the amount of refund/ ITC from the one passed by the original authority?
Ans. The FAA is empowered to pass an order enhancing the fees or penalty or fine in lieu of confiscation or reducing the amount of refund or input tax credit provided the appellant has been given reasonable opportunity of showing cause against the proposed detrimental order. (First Proviso to Section 79(10)). In so far as the question of enhancing the duty or deciding wrong availment of ITC is concerned, the FAA can do so only after giving specific SCN to the appellant against the proposed order and the order itself should be passed within the time limit specified under Section 51. (Second Proviso to Section 79(10)).
Q 11. (only for SGST law) What is the provision relating to pre-deposit before filing appeal to file appeal to First Appellate Authority under SGST?
Ans. 10% of the amount in dispute has to paid before filing appeal. This is common for both CGST and SGST. However, for SGST, in addition to this 10%, the appellant has to also pay “ in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him” Further, if the Commissioner of SGST considers any case to be a “serious case”, the departmental authority can apply to the first Appellate Authority for ordering a higher amount of pre-deposit not exceeding 50% of the amount in dispute.
Q 12. (only for SGST law) What is the meaning of “serious case”?
Ans. It is defined to mean a case involving a disputed tax liability of not less than Rs. 25 Crores and where the Commissioner of SGST is of the opinion (for reasons to be recorded in writing) that the department has a very good case against the taxpayer.
Q 13. Can the Commissioner of SGST revise any order passed under the Act by his subordinates?
Ans. Yes. Section 80(1) of SGST Act authorises Commissioner to call for and examine any order passed by his subordinates and in case he considers the order of the lower authority to be erroneous in so far as it is prejudicial to revenue, he can revise the order after giving opportunity of being heard to the noticee.
Q 14. Can the Commissioner of SGST order for staying of operation of any order passed by his subordinates pending such revision?
Q 15. Are there any fetters to the powers of Commissioner under SGST to revise orders of subordinates?
Ans. Yes. The Commissioner shall not revise any order if
(a) the order has been subject to an appeal under section 79 or under section 82 or under section 87 or under section 88; or
(b) more than three years have expired after the passing of the decision or order sought to be revised.
For details of these and some other “fetters”, please refer to Section 80 of the MDL.
Q 16. When the Tribunal is having powers to refuse to admit the appeal?
Ans. In cases where the appeal involves –
i) tax amount or
ii) input tax credit or
iii) the difference in tax or
iv) the difference in input tax credit involved or
v) amount of fine,
vi) amount of fees or
vii) amount of penalty ordered
less than Rs. 1,00,000/-, the Tribunal has discretion to refuse to admit such appeal.(Section82(2) of MGL)
Q 17. What is the time limit within which appeal has to be filed before the Tribunal?
Ans. 3 months from the date of receipt of the order appealed against.
Q 18. Can the Tribunal condone delay in filing appeal before it beyond the period of 3 months? If so till what time?
Ans. Yes the Tribunal has powers to condone delay of any period of time beyond the period of 3 months provided sufficient case is shown by the appellant for such delay.
Q 19. What is the time limit for filing memorandum of cross objections before Tribunal?
Ans. 45 days from the date of receipt of appeal.
Q 20. Bring out the differences in appeal (to Tribunal) provisions under CGST & SGST?
Ans. (i) The provisions under Section 82 of SGST Act for appeal by any person aggrieved by the order or decision passed against him by First Appellate Authority are essentially similar to provisions contained in Section 82 of CGST Act and discussions made therein are equally applicable to section 82 of SGST as well. (ii) In addition to the above the provision of Section 82 of SGST Act also covers an appeal to be filed to Appellate Tribunal against the revisionary order passed by Commissioner. (iii) However the provisions relating to appeal by the revenue against the order of first appellate authority as CGST Act is not provided in SGST Act since the revisionary powers (against the orders passed by the FAA, who in the states is likely to be “subordinate” to the Commissioner) is provided to Commissioner to SGST. (iv) In addition, the person aggrieved under SGST Act has to pre-deposit full deposit of admitted tax, interest, fine, fee and penalty arising from the impugned order.
Q 21. Whether interest becomes payable on refund of pre-deposit amount?
Ans. Yes. As per Section 85 of MGL Where an amount deposited by the appellant under sub-section (6)/(4) of section 79 or under sub-section (10)/(7) of section 82 is required to be refunded consequent to any order of the First Appellate Authority or of the Appellate Tribunal, as the case may be, interest at the rate specified under section 39 shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount.
Q 22. An appeal from the order of Tribunal lies to which forum?
Ans. High Court if the High Court is satisfied that such an appeal involves a substantial question of law. (Section 87(1)). However, if the order passed by the Tribunal relates to a matter where two or more States, or a State and Centre, have a difference of views regarding the treatment of a transaction(s) being intra-State or inter-State; or a matter where two or more States, or a State and Center, have a difference of views regarding place of supply, then appeal against such order shall lie to the Supreme Court and not High Court.
Q 23. What is the time limit for filing an appeal before the High Court?
Ans. 180 days from the date of receipt of the order appealed against. However, the High Court has the power to condone further delay on sufficient cause being shown.