MARCH 06, 2024

By Vijay Kumar

WHERE is the Appellate Tribunal? I asked this question exactly five years ago.

On 13.02.2019, the Allahabad High Court observed, - 2019-TIOL-449-HC-ALL-GST

In this matter learned counsel for the G.S.T. Council is unable to tell as to whether the Tribunal is constituted or not. Learned standing counsel appearing for the State is also unable to tell as to whether the State has moved in the matter or not.

The High Court in its order on 28.02.2019 noted:

It is apparent that promises are being made only in the air. There seems to be no concrete proposal to set up the Appellate Tribunal.

GST is almost seven years old and we are yet to create that all important Tribunal. It is not as if nothing has been done. Here's the story.

In the 28th GST Council Meeting held on 21 July, 2018, the Joint Secretary, Department of Revenue informed the Council that it was proposed to constitute a GST Appellate Tribunal (GSTAT) National Bench at New Delhi and three Regional Benches at Mumbai, Chennai and Kolkata and after seeking the recommendations and approval of the GST Council, approval would be taken for creation of necessary posts of Chairman and Members.

That was in July 2018. Not much happened after that.

On 23rd January 2019, the PIB issued a Press Release:

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has approved the creation of National Bench of the Goods and Services Tax Appellate Tribunal (GSTAT).

The National Bench of the Appellate Tribunal shall be situated at New Delhi. GSTAT shall be presided over by its President and shall consist of one Technical Member (Centre) and one Technical Member (State).

The very validity of the Tribunal has been questioned in several High Courts. Please see Tribunalisation of GSTICE?. In 2019, the Madras High Court held the constitution of the GST Appellate Tribunal unconstitutional. - 2019-TIOL-2188-HC-MAD-GST. The High Court -

(i) Struck down Section 110(1)(b)(iii) of the CGST Act which states that a Member of the Indian Legal Services, who has held a post not less than Additional Secretary for three years, can be appointed as a Judicial Member in GSTAT.

(ii) Struck down Section 109(3) and 109(9) of the CGST Act, 2017 which prescribes that the tribunal shall consist of one Judicial Member, one Technical Member (Centre) and one Technical Member (State).

(iii) Recommended that the Parliament must consider to amend the section for including lawyers to be eligible to be appointed as Judicial Members to the Appellate Tribunal in view of the issues which are likely to arise for adjudication under the CGST Act and in order to maintain uniformity in various statutes.

The Supreme Court is reported to have told the Government in August 2021:

The CGST Act came into force about 4 years back, you have been unable to create any appellate tribunal at all.

The concern is that we want to know it clearly from you whether you want the tribunals or you want to close them down. The impression that we gather is that the bureaucracy does not want tribunals at all. Just tell us and we will entrust their jurisdiction to the high court once again. It is a very sorry state of affairs.

By the Central Goods and Services Tax (Second Amendment) Act, 2023, Lawyers were made eligible to become Members of the Tribunal. This was on 28th December, 2023, when all the hurdles to the creation of the Tribunal were perhaps overcome.

But before that:

1. On March 13, 2019, by Notification No. 01/2019, the Government notified the creation of the National Bench of the Goods and Services Tax Appellate Tribunal (GSTAT) at New Delhi. The Notification reads as:

In exercise of the powers conferred by the section 109 of the Central Goods and Services Tax Act, 2017, the Central Government, on the recommendation of the Council, hereby notifies the creation of the National Bench of the Goods and Services Tax Appellate Tribunal (GSTAT) at New Delhi, with effect from the date of publication of this notification in the Gazette of India (Extraordinary).

But nothing really happened. No, some things did.

2. On 21st August 2019, the Government constituted the State Benches by a notification.

S.O. 3009(E).- In exercise of the powers conferred by the sub section 6 of section 109 of the Central Goods and Services Tax Act, 2017, the Central Government, on the recommendation of the Goods and Services Tax Council, hereby notifies the creation of the State Benches of the Goods and Services Tax Appellate Tribunal (GSTAT) as per the details contained in the table 1 below and Area Benches as per the details contained in table 2 below, with effect from the date of publication of this notification in the Gazette of India (Extraordinary):-

3. This Notification was superseded by a Notification dated September 14, 2023, whereby 31 State Benches were constituted:

S.O. 4073(E). - In exercise of the powers conferred by the sub-section 4 of section 109 of the Central Goods and Services Tax Act, 2017 (12 of 2017) and in supersession of the Ministry of Finance, Department of Revenue's notification number S.O.3009(E), dated the 21st August, 2019, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 21st August, 2019 and the notification number S.O.4332(E) dated the 29th November, 2019, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 02nd December, 2019, the Central Government, on the recommendation of the Goods and Services Tax Council, hereby constitutes the number of State Benches of the Goods and Services Tax Appellate Tribunal as specified in column (3) of the table below, with respect to the State specified in the corresponding entry in column (2) of the said table, at the location specified in corresponding entry in column (4) thereof, with effect from the date of publication of this notification in the Gazette of India (Extraordinary), namely: -

4. By a Notification dated December 29, 2023, the Government superseded the Notification dated March 13, 2019 (Sl. No 1 above) except as respect things done or omitted to be done before such supersession. Actually, nothing was done or omitted!

S.O. 1(E). - In exercise of the powers conferred by the sub-section (3) of section 109 of the Central Goods and Services Tax Act, 2017 (12 of 2017) and in supersession of the Ministry of Finance, Department of Revenue's notification number S.O. 1359(E), published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 13th March, 2019, except as respect things done or omitted to be done before such supersession, the Central Government, on the recommendation of the Goods and Services Tax Council, hereby constitutes the Principal Bench of the Goods and Services Tax Appellate Tribunal (GSTAT) at New Delhi, with effect from the date of publication of this notification in the official Gazette.

On February 15, 2024, The Hindu reported,

Revenue Secretary Sanjay Malhotra had told The Hindu that the tribunal will be functional by July or August 2024.

On February 15, 2024, the Government issued a vacancy Circular proposing to fill 96 vacancies of Members in the GSTAT. (F. No.A-50050/99/2018-CESTAT-DOR-DOR, dated 15 February 2024.

Government has notified the Principal Bench, to be located at New Delhi, and 31 State Benches at various locations (as mentioned in Annexure III). It is proposed to fill the vacancies for Members (Judicial and Technical) of the GSTAT in the Principal bench and the State Benches.

In a judgement delivered on February 08, 2024, The High Court of Bombay at Goa - 2024-TIOL-364-HC-MUM-GST on 25.01.2024 observed:

Mr. Priolkar admits that as on date, the Chairperson and the members of the State Tribunal are not notified. He submits that there is likelihood of notifying the names of Chairperson and members of Goa Bench shortly.

Mr. Rivankar, learned Senior Counsel submits that he will take necessary instructions as to whether the appeal can be filed at the Principal Bench at Delhi or at the State Bench if the same is constituted by notifying the members shortly.

Stand over to 08/02/2024 for further consideration.

On 08/02/2024, the Court observed,

Today Mr. Rivankar would submit that even though the notification is issued by the Government constituting the State Bench, the same is not operational. He submits that the provision of Section 109 of the Central Goods and Service Tax Act 2017 provides that the Government shall notify the State Benches at such places with such jurisdiction as may be recommended by the Council which shall consist of two Judicial Members, a Technical Member (Central) and a Technical Member (State).

He submits that Appeal before the Principal Bench could be entertained only if the issue involved relates to the place of supply.

Mr. Rivankar would submit that since the State Bench is not constituted, petition should be entertained. He submits that even if the Petitioner is relegated to appeal to be presented before the Principal Bench, he will be loosing an opportunity to challenge it before this Court.

The fact remains that by way of notification issued by the Government, State Bench is already notified at Goa on 14.09.2023. It is no doubt true that the State till date failed to constitute the Members of the State Bench by appointing such Members as provided under Section 109(4).

The fact remains that the Principal Bench is functioning. When the State Bench is not in operation, the Petitioner could very well approach the Principal Bench by filing an Appeal in order to redress grievances.

The Petitioner may file such an Appeal before the Principal Bench and if in the meantime the Members are appointed by the State Bench at Goa, such an Appeal could be relegated to the State Bench for the purpose of adjudication. The contentions of the Petitioner will be kept open in such circumstances.

If the Members of the State Bench are not appointed, the Principal Bench may entertain such Appeal in accordance with law.

In view of the above observations and the fact that the Petitioner is having an alternate efficacious remedy by way of filing an Appeal against the impugned Order, the Petition could be disposed of by granting liberty to the Petitioner to approach the Appellate Authority constituted under section 109 of the Central Act.

If the Members of the State Bench are not appointed in the near future, the Appeal could be entertained by the Principal Bench.

With these observations and liberty granted to the Petitioner, the Petition stands disposed of.

So, the High Court has asked the petitioner to approach the Principal Bench at Delhi stating that the fact remains that the Principal Bench is functioning. But where is that Principal Bench? Obviously, the High Court was not informed that like the Goa Bench, the Principal Bench also does not exist except in notifications.

Until next week