First Appeal before Appellate Authority :
Any person aggrieved by any decision or order passed against him under CGST Act or SGST Act or UTGST Act or IGST Act by an adjudicating authority, may appeal to such Appellate Authority as may be prescribed within three months from the date on which such decision or order is communicated to him – section 107(1) of CGST Act
Adjudicating Authority – “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs, the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling,the Appellate Authority and the Appellate Tribunal – section 2(4) of CGST Act.
Appellate Authority – “Appellate Authority” means an authority appointed or authorised to hear appeals as referred to in section 107 – section 2(8) of CGST Act.
Departmental appeal before Appellate Authority – The Commissioner may, of his own motion, or upon request from Commissioner of SGST or UTGST, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under CGST/SGST/UGST/IGST Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order – section 107(2) of CGST Act.
This will be considered as departmental appeal before Appellate Authority.
Appeal in prescribed form and verified – Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner- section 107(5) of CGST Act.
Condonation of delay in filing appeal –Appellate Authority can condone delay upto one month beyond 3 months for appellant/6 months for department if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months – section 107(4) of CGST Act.
Authorities created by statute cannot apply Limitation Act, 1963. They cannot condone delay unless empowered by Statute – Om Prakash v. Ashwini Kumar Bassi (2010) 258 ELT 5 (SC).
Delay beyond aforesaid period can be condoned if assessee was pursuing remedy bona fide in wrong forum – In Ketan V Parekh v. Directorate of Enforcement (2011) 110 SCL 724 = 16 221 = 275 ELT 3 (SC). It was held that though section 5 of Limitation Act does not apply to appeals before other authorities, section 14 of Limitation Act (of condoning delay when appeal fine bona fide in wrong forum) can apply in an appropriate case.
This view has been confirmed in M P Steel Corporation v. CCE (2015) 57 399 = 319 ELT 373= 80 VST 402(SC) * Gilco Exports v. UOI (2015) 443 (P&H HC).
These decisions apply to appeal before Appellate Authority.
In Cairn Energy India v. CCE (2008) 221 ELT 440 (CESTAT), assessee file appeal with Tribunal against order of Joint Commissioner. It was held that delay due to fling of appeal in wrong forum is condonable.
This view has been confirmed in CCE v. Cairn Energy India P Ltd. (2015) 49 GST 395 = 52 371 = 316 ELT 612 (AP HC DB), where it was observed that there is difference between ‘condonation of delay’ and exclusion of period’. Section 5 of Limitation Act is available to assessee as a matter of right.- same view in Sonia Overseas P Ltd. v. UOI (2015) 316 ELT 578 (P&H HC DB) *M P Steel Corporation v. CCE (2015) 57 399 = 319 ELT 373 = 80 VST 402(SC) * Gilco Exports v. UOI (2015) 317 ELT 229 (P&H HC DB).
Mandatory pre-deposit 10% of tax demand before filing appeal before appellate authority – Appeal cannot be filed unless the appellant has deposited a sum in full of tax, interest, fee and penalty arising out of order, as admitted by him and ten per cent of remaining amount of tax in dispute arising from the said order, in relation to which the appeal has been filed – section 107(6) of CGST Act.
Opportunity of hearing – The Appellate Authority shall give an opportunity to the appellant of being heard – section 107(8) of CGST Act.
Upto three Adjournment of hearing – The Appellate Authority 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. However, no such adjournment shall be granted more than three times to a party during hearing of the appeal – section 107(9) of CGST Act.
Additional grounds at the time of hearing – The 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 wilful or unreasonable – section 107(10) of CGST Act.
Order by Appellate Authority – The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against, but shall not refer the case back to the adjudicating authority that passed the said decision or order – section 107(12) of CGST Act.
Thus, Appellate Authority cannot remand the matter to adjudicating authority.
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.
Enhancing fee, fine or penalty only after issuing notice – Appellate Authority can enhance fee, fine or penalty after giving show cause notice and opportunity of hearing – first proviso to section 107(11) of CGST Act.
Order confirming additional tax or disallowing input tax credit only after issuing notice – Appellate Authority has powers to enhance tax demanded or disallow further input tax credit. However, this can be done only after issue of notice.
Where the 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 utilised, 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 time limit specified under section 73 or section 74 – second
proviso to section 107(11) of CGST Act.
Order in writing with reasons – The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision – section 107(12) of CGST Act.
Time limit for passing order – The Appellate Authority 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. If the issuance of order is stayed by an order of a Court or Tribunal, the period of such stay shall be excluded in computing the period of one year – section 107(13) of CGST Act.
Distribution of copies of order – The Appellate Authority shall communicate the order passed by him to the appellant, respondent and to the adjudicating authority. – section 107(14) of CGST Act.
A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of SGST/UTGST or the authority designated by him – section 107(15) of CGST Act.
Order final if not appealed against – Every order passed under this section shall, subject to the provisions of section 108, 113, 117 or 118 be final – section 107(16) of CGST Act.