APPEAL TO HIGH COURTS IN GST

[Dr. Sanjiv Agarwal]

Section 117 of CGST Act, 2017 contains the provisions relating to filing of appeals before any High Court. It stipulates the appealable orders, conditions for filling the appeal, who can file the appeal, manner of filing the appeal, time limit for filing the appeal, hearing of appeals and delivery of judgments.

The law provides that either side (department or party) if aggrieved by any order passed by the State Bench of the Tribunal may file an appeal to the High Court and the High Court may admit such appeal if it is satisfied that the case involves a substantial question of law. It is to be noted that on facts, the tribunal is the final authority.

Appeals to the High Court are to be filed within 180 days, but the HC has the power to condone delay on being satisfied of sufficient cause for the same.

On being satisfied that a substantial question of law is involved, the High Court shall formulate that question, and the appeal shall be heard only on the question so formulated. However, the High Court has the power to hear the appeal on any other substantial question of law if it is satisfied that the case involves such question. The High Court shall decide the questions of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. The High Court may determine any issue which has not been determined by the Tribunal or has been wrongly determined by the Tribunal, by reason of a decision on such questions of law.

Appealable Orders

For filing any appeal before any High Court, following ingredients must exist:—

1. There must be an appealable order passed by state bench of the Appellate Tribunal (Sub-section 1).
2. There must be a person who is aggrieved by an order of appellate Tribunal (sub-section 1).
3. High Court to admit appeal, if it is satisfied that the appeal involves a substantial question of law (sub-section 1).
4. Appeal must be filed within 180 days from the date on which order appealed against is received (sub-section 2).
5. Appeal must be filed in prescribed form and verified in the prescribed manner
6. The High Court shall determine the question to be answered and hearing /arguments to take place only on that question (sub-section 3).
7. High court shall decide the question of law framed under sub-section 3 and deliver the judgment. It can also award cost, if deemed fit (sub-section 5).
8. High court appeals shall be heard by a bench of not less than two judges and decided by majority of opinion. High Court appeals cannot be decided by single judge bench (sub-section 6).
1. In case of difference of opinion on any point, it will be heard by other judge of the same High Court and then set by majority (sub-section 7)
10. The judgment of the High Court shall be implemented on the basis of certified copy of the judgment (sub-section 8)
11. To the extent applicable, the provisions of Code of Civil Procedure, 1908 (CCP, 1908) shall be applicable to High Court appeals (Sub-section 9)

Action on question of law

In terms of sub-sections (3), (4), and (5) of section 117,

• Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
• The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
• The High Court may determine any issue which–
• has not been determined by the appellate tribunal, or
• has been wrongly determined by the appellate tribunal, by reason of a decision on such question of law.

Manner of filing appeal

As per Rule 114 of CGST Rule, 2017, an appeal to the High Court under sub-section (1) of section 117 shall be filed in Form GST APL-08. The grounds of appeal and the form of verification as contained in Form GST APL-08 shall be signed an authenticated in terms of rule 26.

Role of jurisdictional officer on confirmation of demand by court

According to Rule 115 of CGST Rules, 2017, the jurisdictional officer shall issue a statement in Form GST APL-04 clearly indicating the final amount of demand confirmed by the High Court or, as the case may be, the Supreme Court.

Application of Civil Procedure Code, 1908

In terms of section 117(9) of the CGST Act, 2017, the provisions of the Civil Procedure Code, 1908 relating to appeals to the High Court shall, as far as may be, apply in the case of appeals.

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