An advocate has moved the Madras High Court challenging the constitution of the appellate tribunal (AT) under the GST Act.
Advocate V Vasanthakumar filed the petition praying that Sections 109 and 110 of the Central Goods and Services Tax (CGST) Act, 2017 relating to constitution of the AT and qualification, appointment and condition of services of its member be declared ultra vires of Articles 13, 14, 19 and 50 of the Constitution of India “as the same are void, defective and unconstitutional, being violative of doctrines of separation of powers and independence of judiciary”.
Drawing a comparison between the pre- and post-GST structure of these benches, the petitioner said, “…during the pre-GST regime, taxes were levied under separate laws namely Central Excise, Custom and Service tax had also the scheme of second appeal before the Appellate Tribunal known as Custom, Excise & Service Tax Appellate Tribunal (‘CESTAT’). Each bench of CESTAT consisted of two members, one Judicial Member and one Technical Member.
“GST law provide for constitution of Appellate Tribunal. The Appellate Tribunal is constituted under Section 109 of the CGST Act and Tamil Nadu GST Act and Section 110 of the CGST / TNGST Act, provides for qualification appointment, condition of services, etc., for President and members of the Appellate Tribunal. The Appeal filed in the Tribunal is the second level of appeal, where appeals can be filed against the orders passed by the Appellate Authority or order in revision passed by revisional authority.”
With the law envisaging constitution of a two-tier tribunal i.e., national bench/regional benches and the state bench/ area benches, the petition said, “Section 109 (9) of the Central Act, contemplates that each State Bench and Area Benches of the Appellate Tribunal shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) and the State Government may designate the senior most Judicial Member in a State as the State President whereas, the Supreme Court had in Union of India v R. Gandhi categorically enunciated that Bench of National Company Law Tribunal / National Company Law Appellate Tribunal should consist of one Judicial Member and one Technical Member or the Judicial Member should be equal or in majority in compare to the Technical Member and in no circumstances the number of Technical Member should be in majority compared to Judicial Members.”
“…the “Coram” of the Appellate Tribunal consists of One Judicial Member and two Technical Members whereby the constitution of Appellate Tribunal is “corm non judice”,” he rued while seeking stay on the operation of sections 109 and 110.
It is to be noted that a similar petition challenging the constitution of Authority of Advance Ruling and the Appellate Authority of Advance Ruling under the Central Goods and Services Tax sans any judicial member is pending before the Gujarat High Court.