SECTION 82: FIRST APPEALS TO FIRST APPELLATE AUTHORITY-PART-II

GST Update 07.03.2016

GST DAILY DOSE OF UPDATION:-

SECTION 82: FIRST APPEALS TO FIRST APPELLATE AUTHORITY-PART-II:-

The first appellate authority shall give opportunity to the appellant of being heard, if so desired and also has power to grant adjournment for reasons to be recorded in writing. However, no adjournment shall be granted more than three times to a party. The first appellate authority may also allow the appellant to take additional grounds if it is satisfied that the omission of ground from the grounds of appeal was not willful or unreasonable. Furthermore, the first appellate authority after considering the submissions of the appellant pass such order as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against or remand the matter back to the adjudicating authority.

The above cited provisions are similar to the provisions presently in force. Moreover, the proposed GST regime seeks to provide expressly that the Commissioner Appeals may remand the matter back to the adjudicating authority which is appreciable. This is for the reason that prior to amendment made in section 35A(3) of the Central Excise Act, 1944 and section 128A of the Customs Act, 1962, the Commissioner Appeals had express power to refer the case back to the adjudicating authority. However, this express provision was deleted with effect from 11.05.2001. Consequently, the courts interpreted the amendment in a manner so as to conclude that after amendment w.e.f. 11.05.2001, the Commissioner Appeals does not has power to remand the case back to the adjudicating authority. This was held by the Hon’ble Punjab & Haryana High Court in the case of CC, AMRITSAR VS. ENKAY (INDIA) RUBBER CO. PVT. LTD (2007-TIOL-152-HC-P&H-CUS). However, certain courts also interpreted the other way round that Commissioner Appeals may remand the case to the adjudicating authority even after amendment and this view was taken by Hon’ble High Court in the case of CCE, AHMEDABAD -I VS. MEDICO LAB (2004-TIOL-39-HC-GUJ-CX). As such, this led to unnecessary confusion and litigation. The proposed GST regime seeks to put an end to the said litigation and seeks to bring more clarity as regards the power of the Commissioner Appeals to remand the case back to the adjudicating authority.

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GST Update 07.03.2016

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