Background:-
Various representations have been received wherein the issue has been decided against the registered person by the adjudicating authority or refund application has been rejected by the appropriate authority and appeal against the said order is pending before the appellate authority. It has been gathered that the appellate process is being kept pending by several appellate authorities on the grounds that the appellate tribunal has been not constituted and that till such time no remedy is available against their Order-in-Appeal; such appeals cannot be disposed of. Doubts have been raised across the field formations in respect of the appropriate procedure to be followed in absence of appellate tribunal for an appeal to be made under section 112 of the Maharashtra Goods and Services Tax Act, 2017 (hereinafter referred to as the “MGST Act”). GST Policy Wing of Central Board of Indirect Taxes and Customs has issued circular No. 132/2/2020 – GST dated the 18th March 2020 in this regard.
Clarification:-
The Commissioner of State Tax, Maharashtra vide Trade Circular No. 9T of 2020 dated May 26, 2020, has issued a clarification on appeal to Appellate Authority on the non-constitution of the Appellate Tribunal. The following are the clarifications and guidelines issued by the commissioner are as under:-
1. Appeal against an adjudicating authority is to be made as per the provisions of Section 107 of the MGST Act. The sub-section (1) of the section reads as follows: –
“107. (1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.”
1.2 Relevant rules have been prescribed for the implementation of the above Section. The relevant rule for the same is rule 109A of Maharashtra Goods and Services Tax Rules, 2017 which reads as follows: –
“109A. Appointment of Appellate Authority. – (1) Any person aggrieved by any decision or order passed under his Act or the Central Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to –
(a) the Joint Commissioner (Appeals) where such decision or order is passed by the Deputy Commissioner;
(b) the Deputy Commissioner (Appeals) where such decision or order is passed by the Assistant Commissioner or State Tax Officer, within three months from the date on which the said decision or order is communicated to such person.”
1.3 Hence, if the order has been passed by Deputy Commissioner, appeal has to be made to Joint Commissioner (Appeal). Further, if the order has been passed by Assistant Commissioner or State Tax Officer, appeal has to be made to the Deputy Commissioner (Appeal) appointed for the same.
2. The appeal against the order passed by appellate authority under Section 107 of the MGST Act lies with the appellate tribunal. Relevant provisions for the same is mentioned in Section 112 of the MGST Act which reads as follows: –
“112 (1) Any person aggrieved by an order passed against him under section 107 or section 108 of this Act or the Central Goods and Services Tax Act may appeal to the Appellate Tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal.”
2.2 The appellate tribunal has not been constituted in view of the order by Madras High Court in the case of Revenue Bar Assn. v. Union of India and therefore the appeal cannot be filed within three months from the date on which the order sought to be appealed against is communicated. In order to remove difficulty arising in giving effect to the above provision of the Act, the Government, on the recommendations of the Council, has issued the Maharashtra Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 06.01.2020. It has been provided through the said Order that the appeal to tribunal can be made within three months (six months in case of appeals by the Government) from the date of communication of order or date on which the President of the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later.
2.3 Hence, as of now, the prescribed time limit to make an application to the appellate tribunal will be counted from the date on which President or the State President enters the office. The appellate authority while passing order may mention in the preamble that appeal may be made to the appellate tribunal whenever it is constituted within three months from the President of the State President enters the office. Accordingly, it is advised that the appellate authorities may dispose of all pending appeals expeditiously without waiting for the constitution of the appellate tribunal.
3. Recovery of dues after disposal of the appeal:-
After disposal of pending appeal u/s 107, if any demand is confirmed or appellate authority has created the additional demand then in such cases taxpayer shall submit a declaration in Annexure-I before the jurisdictional tax officer stating that he is proposing to file an appeal u/s 112(1) against the appeal order. If such declaration is not submitted within fifteen days from the communication of the said order, then it will be presumed that the taxpayer is not willing to file an appeal against the order and recovery proceedings may be initiated as per the provisions of law.
4. This Trade Circular is clarificatory in nature and cannot be made use of for interpretation of provisions of the law. Difficulty if any, in the implementation of this Circular may be brought to the notice of the office of the Commissioner of State Tax, Maharashtra.
The Circular can be accessed at: https://www.mahagst.gov.in/sites/default/files/Trade%20Circuler.pdf