GST Appeal - Impugned Order & Respondent before Tribunal

[vaibhav agrawal]

Under the provisions of the Central Goods and Services Tax Act, 2017, I seek clarification on the correct procedural position in the following case:

• The Superintendent (Adjudicating Authority) passed an order in favour of the taxpayer.
• The Department filed an appeal under Section 107(2).
• The Appellate Authority (First Appeal) passed an order in favour of the Department.

Now, the taxpayer intends to file an appeal before the GST Appellate Tribunal under Section 112.

In this background, kindly clarify:

1. What will be considered as the 'impugned order' for the purpose of filing appeal before the Tribunal?
   • Whether it is the original order passed by the Superintendent, or
   • The order passed by the Appellate Authority under Section 107?
2. Who should be impleaded as the 'Respondent' in the appeal before the Tribunal?
   • Whether the Superintendent (original adjudicating authority), or
   • The Jurisdictional Commissioner / CGST Department, or
   • Appellate authority who have passed the appeal order ?

[KASTURI SETHI]

Dear Querist,

The impugned order is Order-in-Original (Adjudication Order) passed by the Superintendent and Respondent is the Commissioner CGST/SGST Department.

It is pertinent to mention that the jurisdictional Commissioner issues Review Directions (Order-in-Review) authorizing the Proper Officer to file an Appeal against the Order-in-Original. Hence the respondent is the CGST/SGST department.

[Pinnacle Tax Advisor]

Hi,

Impugned order will be the order which is being challenged before the Tribunal. In the present case, the adjudicating authority had passed the first order in your favor. Subsequently, the first appellate authority set aside that order and reversed the position. Therefore, the order passed by the first appellate authority would be considered as the impugned order for the purpose of filing appeal before the Tribunal.

Accordingly, the respondents in the appeal will be the first appellate authority whose order is under challenge, along with the jurisdictional Commissioner or Joint Commissioner who directed the filing of the appeal against the order originally passed by the adjudicating

[KASTURI SETHI]

The origin of dispute is Order-in-Original itself. After challenging the legal validity of the Adjudication Order by CGST Department, the Adjudication Order (Order-in-Original) became the impugned order. Emphasis is laid on the ORIGIN of the dispute. Root cause of the dispute.

[YAGAY andSUN]

Under the Central Goods and Services Tax Act, 2017, the statutory scheme of appeals is hierarchical. An appeal under Section 112 lies against the order passed by the Appellate Authority under Section 107, and not against the original adjudication order.

Once an order-in-original passed by the Superintendent is carried in appeal and adjudicated by the Appellate Authority, the original order merges into the appellate order to the extent of issues decided. Accordingly, the operative and enforceable order is that of the Appellate Authority. Therefore, for the purpose of filing an appeal before the Tribunal, the order passed under Section 107 constitutes the "impugned order."

The contention that the order-in-original remains the impugned order on account of being the genesis or root cause of the dispute is not legally tenable. Appellate proceedings are directed against the subsisting order in force, and not the originating cause of action. The doctrine of merger precludes independent challenge to the original order once it has been subjected to appellate scrutiny.

As regards the array of parties, the Appellate Authority, being a quasi-judicial body, is not a necessary or proper party to the proceedings before the Tribunal. Similarly, the original adjudicating authority (Superintendent) is not required to be impleaded.

The appropriate respondent in such appeal is the jurisdictional Commissioner representing the CGST/SGST Department, being the authority administering the Act and the contesting party to the 'lis' (i.e. dispute under adjudication). This position remains unaffected by the fact that the appeal before the Appellate Authority was instituted pursuant to review directions issued by the Commissioner.

In sum, the appeal before the Tribunal shall impugn the order passed under Section 107, and the respondent shall be the jurisdictional Commissioner of the concerned CGST/SGST authority.

AI Summary

GST appellate procedure on impugned order and proper respondent in Tribunal appeals under the merger doctrine. GST appellate procedure concerning identification of the impugned order and the proper respondent in an appeal to the Appellate Tribunal was discussed in the context of an original adjudication order, a departmental appeal, and a subsequent first appellate order. The principal view stated that, once the original order is carried in appeal and disposed of by the Appellate Authority, the operative order for the Tribunal appeal is the order passed under section 107, by reason of merger. The proper respondent is the jurisdictional Commissioner representing the CGST/SGST Department.