SECTION 107 CGST ACT: PRINCIPLE

GOVERNING FILING OF APPEAL

BEFORE FIRST APPELLATE AUTHORITY.

BY
Pradeep K Mittal*

The Section 107 of Central Goods & Service Tax, 2017

(hereinafter called the GST Act) says that any person aggrieved
with the decision or order passed by the Adjudicating Authority
may file an appeal before the Appellate Authority.
Section 107; Any person aggrieved by any decision or
order passed under this Act or the State Goods and Services
Tax Act or the Union Territory Goods and Service 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.
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*Advocate: Past Central Council Member, ICSI E Mail:
[email protected]
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2: Under Section 107 of CGST Act, an appeal may be
preferred by “aggrieved person” under CGST Act, SGST Act
and UGST Act against order or decision passed by the
Adjudicating Authority. The Supreme Court in the case of
Baldev Singh v. Surinder Mohan Sharma MANU/SC/0900/2002
held that an appeal under Section 96 of CPC would be
maintainable only at the instance of a “person aggrieved” by and
dissatisfied with the judgment and decree. While dealing with
the concept of "person aggrieved", the Bench observed thus:

15. A person aggrieved to file an appeal must be one

whose right is affected by reason of the judgment and
decree sought to be impugned.
3: The Supreme Court in the case of Banarsi Vs. Ramphal
[MANU/SC/0147/2003, has interpreted the word “aggrieved
person” in the following words:-
It is settled by a long catena of decisions that to be entitled to
file an appeal, the person must be one aggrieved by the
decree. Unless a person is prejudicially or adversely affected
by the decree, he is not entitled to file an appeal.
4: A question now arises as to whether an appeal before the
Appellate Authority lie only against the final judgment or final
adjudication order or against any “order” passed by the
Adjudicating Authority. In Section 107(1), the words used are
“decision” or “order” which may not be “final judgment” or
“final order” and there would be misc. order or may be even
“interim order” or “misc order”. The word “order” has been
interpreted by the Hon’ble Supreme Court and that of High
Courts in the following judgments.

5: The Hon’ble Supreme Court in the case of Raj Kumar

Shivhare vs. Directorate of Enforcement: MANU/SC/0249/2010
while definding the word “Order” as appearing in Section 35 of
FEMA, observed as under:-

29. Therefore, in our judgment in Section 35 of FEMA, any

`order' or `decision' of the Appellate Tribunal would mean
all decisions or orders of the Appellate Tribunal and all
such decisions or orders are, subject to limitation,
appealable to the High Court on a question of law.

6: The Delhi High Court in the case of Batool Dawood Vs.

Directorate of Enforcement : MANU/DE/0446/2015, while
defining the word “Order”, has observed as under:-

In so far as Section 35 of the FEMA is concerned, it gives a

right to an aggrieved party to prefer an appeal against "any"
"order" or "decision" of the Appellate Tribunal. Therefore,
an appeal, even against an interim order of the Appellate
Tribunal, will be available to the petitioners.

7: In my view, the following types of orders (which are only

by way of illustration) which are either in the nature of misc.
order or interim orders, the appeal against which would lie
before Appellate Authority.

a) : Rejection of request for remission of duty/taxes

b) : assessment of returns;
c) : where the amount of tax determined to be payable by
him as per the order exceeds the amount of tax paid by
him on self-assessment basis; or
d): Where the assessee is denied the benefit of any
 exemption availed by him under the GST Acts and in
his opinion, he is eligible for such exemption; or
e): Where assesse is penalized for any contravention under
GST Acts for which he id not liable; or
f): Refund Order
g): Interim order under Section 129E Customs Act, 1962
h): Order rejecting the request for summoning of witness
for cross-examination;
i): Conditions imposed by the Department for provisional
clearance of imported goods;
j): any other orders under various sections of the
CGST/SGST Act/UGST Act affecting rights of party;
k): non-grant of permission, authorization, approval sought
from proper officer under the Acts;

NON APPEALABLE ORDER

8: However, under Section 121 of CGST Act, there are certain

orders which are not at all appealable:-

a) An order transferring proceedings from one officer to

another officer;
b) An order of seizure or retention of books of account,
registers and documents;
c) An order sanctioning the prosecution under this Act;
d) An order passed under Sec
e) Section 80 of CGST Act,

9: Though no appeal may lie by virtue of bar of Section 121

CGST Act, however, there is no bar in challenging any of the
aforesaid orders by way of writ petition under Article 226 of the
Constitution of India before the concerned High Court. It is
always advisable to challenge by way of writ petition since there
are bright chances of getting justice from Hon’ble High Courts.

WHETHER ORDER OF REMAND IS APPEALABLE

10: The question arise as to whether order of remand to either
lower appellate authority or lower adjudicating authority is
appealable. It is seen many a times, the Commissioner (Appeal)
instead of deciding the appeal themselves remand the matter to
the adjudicating authority when facts are not at all in dispute and
no adjudication of factual matrix is called for.
11: The Supreme Court in the case of Union of India Vs.
Umesh Dhaimode reported as MANU/SC/1463/1997 held that
power to remand the matter to the authority below for fresh
decision is inbuilt in the aforesaid provision.
12: The Gujarat High Court in the case of CCE, Ahmedabad v.
Medico Labs reported in MANU/GJ/0635//2004 (Guj.) has also
held that Commissioner (Appeals) continues to have power of
remand even after the amendment of Section 35A(3) of the
Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11-5-
2001.
13: Now, in the GST regime, by virtue of Section 107(11) of
CGST Act, the power of remand has been specifically taken
away from the Appellate Authority and, therefore, Appellate
Authority cannot now remand the matter to Adjudicating
Authority. In case, Appellate Authority yet remands, the said
order could be challenged before Appellate Tribunal by way of
an appeal. However, the Appellate Tribunal can always remand
either to the Commissioner Appeal or to the Adjudicating
Authority as there is no legal bar.
APPEAL BEFORE WHOM & PROCEDURE
14: Against Adjudication Order, the appeal, could be filed
before (i) Joint Commissioner (Appeal), or Commissioner (A) in
Form No. APL-1 electronically in accordance with Rule 108(1)
of CGST Rule accompanied by the following:
a) Form No.APL-1 containing information pertaining
to appellant, details of tax, penalty and interest;
nature of dispute and personal hearing sought;
14.1: An appeal has to be filed in Form No.APL-01
electronically and thereafter provisional acknowledgement shall
be issued by the Department.
14.2: A hard copy of the appeal, in triplicate, (with Court
Fee of Rs.1/- only to be affixed on First Page) accompanied by
the impugned judgment/order and also accompanied by the
documents/annexures, as below, shall be filed within a seven
days from the days of electronic filing. A final
acknowledgement indicating appeal number shall be issued in
Form GST APL-02 to Appellant. The date of filing of appeal
shall be date of issuance of provisional acknowledgement if hard
copy is submitted within 7 days. If the hard copy is submitted
beyond seven days, then the date of filing of appeal would be
date of submission of physical copy. Pl keep in mind that First
Appellate Authority has no power to condone the delay beyond
30 days (i.e. 90 days + 30 days). In other words, the appeal can
never be filed beyond 120 days.
b) Certified Copy of the impugned order/judgment/Order-
in-original/ In certified copy not available, even simple
self attested photocopy will do with court fee stamp of
Rs.1/- to be affixed.
c): Statement of Facts explaining the issues involved,
department’s case in SCN, Appellant’s case in Reply to
SCN and findings of the Adjudicating Authority, Error of
law/facts in Order-in-Original and lastly ground raised
against each of the points/contentions/issues involved and
sought to be challenged in the Appeal.
d): Copies of Annexures viz. (i) Show Cause Notice (ii)
Reply to SCN (iii) Copies Annexures/evidence filed with
Reply to SCN (iv) self certified copy of impugned order or
OIO or judgment; (v) Copies of the Board Circulars
referred to or relief upon in the appeal (vi) Original by way
of additional evidence in the form of Chartered
Accountant’s Certificate (vii) Original/Certified Copy of
the Expert Certificate (viii) Original/Certified Copy of
Report from reputed Institute, Authority or (ix)
Original/Certified Copy of Report from Independent
Engineers/Architect/Professionals;
e) An application (on plain paper with court fee of Rs.1/-
only) seeking filing of additional evidence – which has not
been filed before Adjudicating Authority – on many
occasions, the Adjudicating Authority goes beyond the
terms of SCN, records findings on an issue which is not
subject of matter of SCN and, therefore, to meet this
adverse findings, file additional
evidence/documents/affidavits/reports.
f): Certified Copies of Balance Sheets/Original Affidavits
(on stamp paper of Rs.10/- duly notarized by Notary
Public/Oath Commissioner) of
Directors/Officers/Suppliers/Buyers/Third Party by way of
evidence in support of the case of appellant;
g): Technical Literature obtained from (i) Technical
Institutions (ii) Excerpts from Authoritative Literature (iii)
Foreign Journal/Technical/Law Dictionary;
h): If E Mail of Departments/Appellant’s E Mails is relied
upon, pl furnish an Affidavit under Section 65B of Indian
Evidence Act (on stamp paper of Rs.10/- duly notarized by
either Oath Commissioner/Notary Public). Affidavit to be
sworn by Authorized Signatory of Appellant.
h) Proof of evidence of Pre-deposit i.e. 10% of the amount
of disputed tax – it could be either from Electronic Cash
Ledger or Electronic Credit Ledger (Please see para 15
below).
 i) Proof of payment of court fees/Authorization letter on
Rs.50 stamp paper in favour of practicing professional such
as CA/CS/CMA and Vakalatnama (Rs.2/- court fee stamp )
in favour of Advocate.
j): Certified copy of Board resolution/Power of attorney
(duly notarized by Notary Public) in favour of person who
is signing the Appeal as a authorized signatory – Managing
Director/Director /ED/VP/GM/Legal Head, on their own,
has no authority or power to sign, verify and file appeal on
behalf of appellant - Refer Order 29 Rule 1 CPC.
k): Give reference of decided cases against each of the
issues involved in the appeal and attach photocopies of
those judgments and relevant portion highlighted with
marker;
l) Prepare Paper Book with Index and all pages fully page
numbered – without page numbering, it is very difficult to
seek attention of Adjudicating Authority at the time of
personal hearing;
m) Signature of Authorized Signatory and also Authorized
Representative/Vakalatnama holder;
14.3: In terms of Rule 109A inserted in CGST Rule, 2017 w.e.f.
15.11.2017, Appellate Authority for deciding appeals filed by
the Appellant as well as by the Department have been prescribed
as under:-
 a) Commissioner (Appeal) where such decision or order is
passed by the Additional or Joint Commissioner;
b) Any officer not below the rank of Joint Commissioner
(Appeal) where such decision or order is passed by the
Deputy or Assistant Commissioner or Superintendent;
Notification No.60/2018-CT dt.30.10.2018.
15: As per Section 107(6)(b) of CGST Act, 10% of the
disputed amount of tax to be deposited by way of Pre-Deposit. It
could be by way of reversal from accumulated amount of Cenvat
Credit/ITC as per Section 49(4) of GST Act and if Cenvat
Credit/ITC is not available – then deposit cash. No amount of
penalty or interest is required to be deposited when 10% of
disputed tax has been paid either by way of reversal of
ITC/Cenvat or Cash. However, wherever disputed amount is
only way of penalty, as per Section 107(6)(b), nothing is
required to be deposited by way of “pre’-deposit” as a condition
precedent for filing/registering of Appeal. The Gujarat Court in
the case of Sunland Metal Recyling Vs. CCE
MANU/GJ/0339/2014, it has been held that Cenvat is nothing
but a Excise duty charged under Section 3 of Central Excise Act,
1944. The DB of Delhi High Court in the case of Jai Bharat
Maruti Ltd Vs. CCE MANU/DE/0513/2009 has also held that
Modvat is nothing but a Excise Duty.
16: By virtue of Section 107(7) of CGST Act, where the
amount of 10% as mandated under Section 107(6)(b) has been
deposited, the balance shall be deemed to be stayed and no
recovery proceedings shall be initiated. The Board Circular
No.1053/02/2017 dt.10.3.2017 also affirms this. It means, no
separate order is called for as required under the Income Tax
Act, 1961 when the appeal is filed before the bench of ITAT.
17: In the preceding paras, practice, procedure and law in
relation to filing of an appeal before the First Appellate
Authority has been discussed and in a Part-II to be released later,
other legal issues pertaining to Appeal would be explained.