Short Note on GST Appellate Tribunal Under Central Goods and Services Tax Act

An appeal against order of first appellate authority or revisional authority lies before the GST Appellate Tribunal constituted by Central Government under Section 109 of CGST Act. [Section 109(1)]

Jurisdiction
The powers of Tribunal shall be exercised by:
a. National Benches and Benches thereof (called Regional Benches).
b. State Benches and Benches thereof (called ‘Area Benches’). State Bench and Area Benches shall be notified for each State/ Union Territory, and shall exercise the powers of Appellate Tribunal within the concerned State/ Union Territory)
The Central Government, by way of Notification constitutes the GST Appellate Tribunal. The Regional Benches are notified by the Government, on the recommendations of the Council. The State Bench/ Area Benches of the Appellate Tribunal are constituted by the Central Government by way of Notification. [Section 109 (1), (4) and (6)] Detailed provisions for constitution of Appellate Tribunal, and the Qualifications, terms etc. of the members thereof are provided for in the Central Goods and Services Tax Act, and the State GST Acts simply adopt the said Appellate Tribunal for the State GST Act. For example, provisions of Section 109 and 110 of the Delhi GST Act, 2017 read as under:
109. Appellate Tribunal and Benches thereof.
(1) Subject to the provisions of this Chapter, the Goods and Services Tax Tribunal constituted under the Central Goods and Services Tax Act shall be the Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority under this Act.
(2) The constitution and jurisdiction of the State Bench and the Area Benches located in the State shall be in accordance with the provisions of section 109 of the Central Goods and Services Tax Act or the rules made thereunder.

110. President and Members of Appellate Tribunal, their qualification, appointment, conditions of service, etc.
The qualifications, appointment, salary and allowances, terms of office, resignation and removal of the President and Members of the State Bench and Area Benches shall be in accordance with the provisions of section 110 of the Central Goods and Services Tax Act.

The National Bench or Regional Benches of the Appellate Tribunal have jurisdiction to hear appeals against the orders passed by the Appellate Authority or the Revisional Authority in the cases where one of the issues involved relates to the place of supply. [Section 109(5)]

The State Bench or Area Benches have jurisdiction to hear appeals against the orders passed by Appellate Authority or Revisional Authority in the cases involving matters other than those referred to in sub-section (5) (sub-section 5 grants jurisdiction to National or Regional Bench of the Tribunal where one of the issue involved relates to place of supply). [Section 109(7)]

NATIONAL BENCH:

The GST Appellate Tribunal so envisaged under the Act has one National Bench situated at New Delhi with Regional Benches as may be required, to be constituted by Notification by the Central Government. The composition of National Bench has been provided as follows:
1. President
2. One Technical Member (Centre)
3. One Technical Member (State)
[Section 109(3)] Regional Benches may be constituted as the Central Government may require and such Regional Benches shall consist of:
1. One Judicial Member
2. One Technical Member (Centre)
3. One Technical Member (State)
[Section 109(4)] Appeal against order of National Bench or Regional Benches of the Appellate Tribunal
An appeal against order of National Bench or Regional Bench of the Appellate Tribunal lies to Supreme Court. (Section 118). Therefore matters where appeal lies to the National Bench, would not be appealable to the High Court, though in appropriate cases, writ petition may lie against the order of the National Bench.

STATE BENCH:

A state Bench of the Appellate Tribunal is constituted for each state by way of Notification to be issued by the Central Government for exercising the powers of the Appellate Tribunal within the concerned State or Union Territory. [ Section 109(6)] Further, the Government shall, on receipt of request from any State Government, constitute such number of Area Benches in that State, as may be recommended by the GST Council. [Section 109(6)(2nd Proviso)] The composition of each State Bench and Area Benches of the Appellate Tribunal is laid down in Act as follows:
1. One Judicial Member
2. One Technical Member (Centre) and
3. One Technical Member (State) [Section 109(9)]

President: State Bench:
The State Government may designate the senior most Judicial Member in a State as the State President. [Section 109(9)]

Appeal against order of State Bench or Area Benches of the Appellate Tribunal:
An appeal against order of State Bench or Area Bench lies to High Court under Section 117. An appeal against order or judgment of High Court in an appeal made under Section 117 lies to Supreme Court.

Qualification of members of Appellate Tribunal:
For President:-
1. Judge of Supreme Court; or
2. Chief Justice of High Court; or
3. Judge of High Court for a period not less than five years
[ Section 110 (1) (a)]

For a Judicial Member:-
1. Judge of a High Court; or
2. District Judge qualified to be appointed as a Judge of a High Court; or
3. Member of Indian Legal Service and has held a post not less than Additional Secretary for three years
[Section 110 (1) (b)]

Note:
1. Advocates who are qualified to become judges of High Court, are not qualified to become Member of the Appellate Tribunal.
2. Officers of Indian Legal Service are bureaucrats with no judicial experience, still they are considered to be fit for appointment as Judicial Member.

For Technical Member (Centre):-
1. Member of Indian Revenue (Customs and Central Excise) Service, Group A and have completed at least fifteen years of service in Group A [Section 110(1)(c)]

Note: The officers eligible for appointment as the Technical Member (State) may be Junior in rank than the 1st Appellate Authority/ Revisional Authority, against whose orders, appeals are filed before the Appellate Tribunal.

For Technical Member (State):-
1. Officer of the State Government not below the rank of Additional Commissioner of VAT or the SGST or such rank as may be notified by the concerned State Government on the recommendations of the Council with at least three years of experience in the administration of an existing law or the SGST or in the field of finance and taxation. [Section 110(1)(d)]

Appointment: National Bench and Regional Bench
The President and the Judicial Members of the National Bench and Regional Benches shall be appointed by the Central Government after consultation with the Chief Justice of India. [Section 110(2)] Technical Member (Centre) and Technical Member (State) of the National and Regional Benches shall be appointed by the Central Government on the recommendations of a Selection Committee consisting of such persons and in such manner as may be prescribed. [Section 110(3)] Appointment: State Bench and Area Bench
The Judicial Member of the State Bench or Area Benches shall be appointed by the State Government after consultation with the Chief Justice of the High Court. [Section 110(4)] The Technical Members (Centre) of the State Bench of the Appellate Tribunal shall be appointed by Central Government while Technical Member (State) of State Bench of the Appellate Tribunal shall be appointed by the State Government. [Section 110(5)]

Tenure:
Under the Act, the President, Judicial Member and Technical Members have been given following tenure:-
In case of President
1. Term of three years; or
2. Until he attains the age of seventy years, whichever is earlier

In case of Judicial Member and State President
1. Term of three years; or
2. Until he attains the age of sixty-five years, whichever is earlier

In case of Technical Member (Centre) and Technical Member (State)
1. Term of five years; or
2. Until he attains the age of sixty-five years, whichever is earlier

REAPPOINTMENT:
The President of the Appellate Tribunal, Judicial Member of the Appellate Tribunal, State President and the Technical Member (Centre), Technical Member (State) shall be eligible for reappointment. [Section 110(9), (10), (11)]

REMOVAL:
The procedure for removal of Members of the Appellate Tribunal has been laid down in Section 110(13) as under:-
In case of President, Judicial Members and Technical Members of the National Bench and the Technical Member (Centre) of the State Bench or Area Bench:
The Central Government may, after consultation with the Chief Justice of India, remove such President or Member;

AND

In case of State President, Judicial Members, Technical Member (State) of the State or Area Bench,
The State Government may, after consultation with Chief Justice of High Court, remove such State President or Member, who
a) Has been adjudged an insolvent; or
b) Has been convicted of an offence which, in the opinion of such Government involves moral turpitude; or
c) Has become physically or mentally incapable of acting as such President, State President or Member; or
d) Has acquired such financial or other interest as is likely to affect prejudicially his functions as such President, State President or Member; or
e) Has so abused his position as to render his continuance in office prejudicial to the public interest:
In cases of clauses (d) and (e), President, State President or the Member shall not be removed unless he has been informed of the charges against him and has been given an opportunity of being heard.

TRANSFER:
The Central Government, in consultation with the President may, for the administrative convenience, transfer:
a. Any Judicial Member or Technical Member (State) from one bench to another bench, whether National or Regional; or
b. Any Member Technical (Centre) from one bench to another bench, whether National, Regional, State or Area
[Section 109(12)] The State Government, in consultation with the State President may, for the administrative convenience, transfer a Judicial Member or a Technical Member (State) from one bench to another bench within the State. [Section 109(13)]

BY PUNEET AGRAWAL, PARTNER, & GAURAV GUPTA, ASSOCIATE [ALA LEGAL, ADVOCATES]