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APPEALS UNDER ‘CGST’ LAW

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..... APPEALS UNDER ‘CGST’ LAW - By: - Mr. M. GOVINDARAJAN - Goods and Services Tax - GST - Dated:- 12-11-2016 - - The Model Goods and Services Tax Act, 2016 ( Act for short) provides for appeals, revisions. Different procedures have been given in respect of CGST as well as SGST. In this article the provisions relating to appeals under the Act in respect of CGST will be discussed. Appeal by assessee Section 79(1) provides that 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. Section 2(4) defines the term adjudicating authority as any authority competent to pass any order or decision under this Act, but does .....

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..... not include the Board, the First Appellate Authority and the Appellate Tribunal. The Act does not provide the proper officer as adjudicating authority. This may come in the original Act or rules to be framed for this purpose. Section 2(45) defines the term First Appellate Authority as an authority referred to in Section. In this case also, the Original Act or Rules is to mention who is the First Appellate Authority. Appeal by Department Section 79(2) provides that the Commissioner of GST may, of his own motion, call for and examine the records of any proceedings in which the adjudicating authority has passed any decision or order under this Act, for the purpose of satisfying himself as to the legality or propriety of the .....

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..... said decision or order and may, by order, direct any GST Officer subordinate to him to apply to the First Appellate Authority for the determination of such points arising out of the said decision or order as may be specified by the Commissioner of GST in his order. Limitation for filing appeal Section 79(4) provides that 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 the person preferring the appeal. The First Appellate Authority is given power to condone the delay for a further period of one month if he is satisfied that the appellant is prevented by sufficient cause from presenting the appeal within the li .....

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..... mitation period. Form for appeal Section 79(5) provides that every appeal shall be in the prescribed form and shall be verified in the prescribed manner. Pre deposit Section 79(6) provides that no appeal shall be filed unless the appellant has deposited a sum equal to 10% of the amount in dispute (not penalty) arising from the said order, in relation to which the appeal has been filed. Amount in dispute The expression amount in dispute shall include- Amount determined under Section 46 Assessment of non filers of returns; or Amount determined under Section 47 Assessment of unregistered persons; or Amount determined under Section 48 Summary assessment in certain special cases; or Amount .....

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..... determined under Section 51 Determination of tax not paid or short paid or erroneously refunded; Amount payable under the GST Credit Rules; Amount of fee levied or penalty imposed. Procedure The following is the procedure involved in disposal of the first appeal by the First Appellate Authority- The application made under Section 79(3) of the Act by the authorized officer on the order of Commissioner of GST shall be dealt with by the First Appellate Authority as if it were an appeal made against the decision or order of the Adjudicating Authority; The First Appellate Authority shall given an opportunity to the appellant of being heard, if the appellant so desires; Adjournment The First Appellate Autho .....

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..... rity may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing. No such adjournment shall be granted more than three times to a party during hearing of the appeal; New ground The First Appellate Authority may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if he is satisfied that the omission of that ground from the grounds of appeal was not willful or unreasonable; The First Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confir .....

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..... ming, modifying or annulling the decision or order appealed against; An order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order; Where the First Appellate Authority is of the opinion that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilized, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the t .....

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..... ime limit specified under Section 51 ; The order of appeal shall be in writing and shall state the points of determination, the decision thereon and the reasons for such decisions; The appeal is to be disposed within a period of one year from the date on which it is filed; If the order is stayed by an order of Court or Tribunal the period of such stay shall be excluded in computing the period of one year; The order shall be communicated to the appellant and the adjudicating authority; Unless the order is appealed against in the higher forum, the order shall be final. Appeal before the Tribunal The appeal against the order of the First Appellate Authority may be filed before the Appellate Tribunal constituted for th .....

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..... is purpose. The Central Government shall, on the recommendation of the GST council constitute a National Goods and Services Tax Appellate Tribunal ( Tribunal for short). The features of this Tribunal are as follows- The Tribunal shall be headed by a National President; The Tribunal shall have one branch for each State, which shall be called as the State GST Tribunal; Every State GST Tribunal shall be headed by a State President; Every State GST Tribunal shall consist of as many members (judicial), Members (Technical CGST) and Members (Technical SGST) as may be prescribed, to discharge the duties conferred by this Act; The qualifications, eligibility conditions and the manner of selection and appointment of the Nati .....

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..... onal President, the State President and the Members shall be as may be prescribed on the recommendations of the Council; Threshold limit Section 82(2) provides that the Tribunal shall not entertain an appeal where the tax or input credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined by such order is less than ₹ 1 lakh. Appeal by Department Section 82(3) provides that the Board may constitute Committees for the purposes of filing appeals against the order of the First Appellate Authority. Every such Committee shall consist of two designated officers of GST. If the Committee is of the opinion that an order passed by the First Appellate Authority is .....

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..... not legal or proper, direct any GST officer authorized by it in this behalf to apply to the Appellate Tribunal for the determination of such points arising out of the order of the First Appellate Authority as may be specified by the Committee in its order. If there is any difference of opinion between the Committee Members, it shall be deemed that the Committee has formed the opinion that the order under review is not legal or proper. The authorized officer shall make an application to the Tribunal. Such application shall be dealt with by the Tribunal as if it were an appeal made against the order of the First Appellate Authority. Pre deposit No appeal shall be filed unless the appellant has deposited a sum equal to 10% of the .....

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..... amount in dispute arising from the order, in relation to which the appeal has been failed. Amount in dispute The expression amount in dispute shall include- Amount determined under Section 46 Assessment of non filers of returns; or Amount determined under Section 47 Assessment of unregistered persons; or Amount determined under Section 48 Summary assessment in certain special cases; or Amount determined under Section 51 Determination of tax not paid or short paid or erroneously refunded; Amount payable under the GST Credit Rules; Amount of fee levied or penalty imposed. Procedure The following is the procedure involved in disposing the appeal by the Tribunal- Every appeal shall .....

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..... be filed within 3 months from the date on which the order sought to be appeal against is communicated to the Commissioner of GST or the person preferring the appeal; Every appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a prescribed fee.No fee shall be payable on the appeal or a memorandum of cross examination filed by the Department; On receipt of notice of appeal, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such an order or part thereof, file, within 45 days of the receipt of notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order appealed against an .....

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..... d such memorandum shall be disposed of by the Tribunal, as if it were an appeal; The Tribunal may admit an appeal or permit the filing of memorandum of cross objections after the expiry of the limitation, if it is satisfied that there was sufficient cause for not making it within that period; The Tribunal, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing. No adjournment shall be granted more than three times to a party during hearing of the appeal; The Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders as it thinks fit, confir .....

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..... ming, modifying or annulling the decision or order; or may refer the case back to the First Appellate Authority or to the Original Authority, with such directions, as it may think fit, for a fresh adjudication or decision, after taking additional evidence, if necessary; The Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed; The copy of the order shall be send to the First Appellate Authority or to the Original Adjudicating Authority, the appellant, the jurisdictional Commissioner of CGST and the jurisdictional Commissioner of SGST; Every order passed by the Tribunal, unless appealed against shall be final. Rectification of mistake .....

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..... Section 82(11) provides that in an appeal for rectification of mistake application may be made before the Tribunal accompanying by a prescribed fee before the Tribunal. The Tribunal may amend any order passed by it so as to rectify any mistake apparent from the record, if such mistake is noticed on its own accord, or is brought to the 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. No amendment having the effect of enhancing an assessment or reducing a refund or input tax credit or otherwise increasing the liability of the other party, shall be made unless the Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opport .....

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..... unity of being heard. Revisionary Power No revisionary power has been granted to the Commissioner of GST in respect of CGST. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax .....

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