Ch 34 - Appeals before High Court and Supreme Court | GST Saral by CA Dhruv Aggarwal PDF Download

 Page 1


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
  
 
 
 
 
CHAPTER 34 - Appeal s before Hi gh Court and Supreme Court 
 
 
 
 
 
CHAPTER 34 
 
Appeals  before High Court and Supreme Court 
 
34.1 Appeal to the High Court 
 
Any person aggrieved by any order passed by the State Bench or Area Benches of the Appe late Tribunal 
may f ile an appeal to the High Court and the High Court may admit such appeal, if it is satisfied that the case 
i nvolves a substantial question of law - section 117(1) of CGST Act. 
Time limit for filing appeal - An appeal under section 117(1) shall be f iled within one hundred and eighty 
days from the date on which the order appealed against is received by the aggrieved person. It should be in 
form and manner as prescribed - section 117(2) of CGST Act. 
The High Court may admit an appeal after the expiry of the period of one hundred and eighty days, if it is 
satisfied that there was sufficient cause for not filing the same within that period - proviso to section 117(2) of 
CGST Act. 
High Court  can formulate  the question  - Where the High Court is satisfied that a substantial question of 
law is involved in any case, it shall formulate that question. 
The appeal shall be heard only on the question so formulated, and the respondents sha l, at the hearing of the 
appeal, be a lowed to argue that the case does not i nvolve such question. 
Court can hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated 
by it, if it is satisfied that the case involves such question - section 117(3) of CGST Act. 
Judgment by High  Court  on  question  of law - The High Court shall decide the question of law so 
formulated and deliver such judgment thereon containing the grounds on which such decision is founded and 
may award such cost as it deems fit - section 117(4) of CGST Act. 
High Court can determine any other issue - The High Court may determine any issue which - (a) has not 
been determined by the State Bench or Area Benches; or (b) has been wrongly determined by the State 
Bench or Area Benches, by reason of a decision on such question of law as herein referred to in section 
117(3) of CGST Act - section 117(5) of CGST Act. 
 
Appeal to be heard  by bench  of at least  two judges - When an appeal has been f iled before the High 
Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in 
accordance with the opinion of such Judges or of the majority, if any, of such Judges - section 1117(6) of 
CGST Act. 
Where there is no such majority, the Judges shall state the point of law upon which they di ffer and the case 
sha l, then, be heard upon that point only, by one or more of the other Judges of the High Court and such point 
shall be decided according to the opinion of the majority of the Judges who have heard the case including 
those who first heard it - section 117(7) of CGST Act. 
Code of Civil Procedure applies - Except aforesaid specific provisions, the provisions of the Code of Civil 
Page 2


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
  
 
 
 
 
CHAPTER 34 - Appeal s before Hi gh Court and Supreme Court 
 
 
 
 
 
CHAPTER 34 
 
Appeals  before High Court and Supreme Court 
 
34.1 Appeal to the High Court 
 
Any person aggrieved by any order passed by the State Bench or Area Benches of the Appe late Tribunal 
may f ile an appeal to the High Court and the High Court may admit such appeal, if it is satisfied that the case 
i nvolves a substantial question of law - section 117(1) of CGST Act. 
Time limit for filing appeal - An appeal under section 117(1) shall be f iled within one hundred and eighty 
days from the date on which the order appealed against is received by the aggrieved person. It should be in 
form and manner as prescribed - section 117(2) of CGST Act. 
The High Court may admit an appeal after the expiry of the period of one hundred and eighty days, if it is 
satisfied that there was sufficient cause for not filing the same within that period - proviso to section 117(2) of 
CGST Act. 
High Court  can formulate  the question  - Where the High Court is satisfied that a substantial question of 
law is involved in any case, it shall formulate that question. 
The appeal shall be heard only on the question so formulated, and the respondents sha l, at the hearing of the 
appeal, be a lowed to argue that the case does not i nvolve such question. 
Court can hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated 
by it, if it is satisfied that the case involves such question - section 117(3) of CGST Act. 
Judgment by High  Court  on  question  of law - The High Court shall decide the question of law so 
formulated and deliver such judgment thereon containing the grounds on which such decision is founded and 
may award such cost as it deems fit - section 117(4) of CGST Act. 
High Court can determine any other issue - The High Court may determine any issue which - (a) has not 
been determined by the State Bench or Area Benches; or (b) has been wrongly determined by the State 
Bench or Area Benches, by reason of a decision on such question of law as herein referred to in section 
117(3) of CGST Act - section 117(5) of CGST Act. 
 
Appeal to be heard  by bench  of at least  two judges - When an appeal has been f iled before the High 
Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in 
accordance with the opinion of such Judges or of the majority, if any, of such Judges - section 1117(6) of 
CGST Act. 
Where there is no such majority, the Judges shall state the point of law upon which they di ffer and the case 
sha l, then, be heard upon that point only, by one or more of the other Judges of the High Court and such point 
shall be decided according to the opinion of the majority of the Judges who have heard the case including 
those who first heard it - section 117(7) of CGST Act. 
Code of Civil Procedure applies - Except aforesaid specific provisions, the provisions of the Code of Civil 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
Procedure, 1908, relating to appeals to the High Court sha l, as far as may be, apply in the case of appeals 
under this section - section 117(9) of CGST Act. 
Action on basis of certified copy of High Court - Where the High Court delivers a judgment in an appeal 
f iled before it under this section, effect shall be given to such judgment by either side on the basis of a certified 
copy of the judgment - section 117(8) of CGST Act. 
34.2 Appeal to the Supreme Court 
 
An appeal shall lie to the Supreme Court - (a) from any order passed by the National Bench or Regional 
Benches of the Appe late Tribunal; or (b) from any judgment or order passed by the High Court in an appeal 
made under section 117 in any case which, on its own motion or on an application made by or on behalf of the 
party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be a fit one for 
appeal to the Supreme Court - section 118(1) of CGST Act. 
34.2-1 Hearing before Supreme Court 
 
The provisions of the Code of Civil Procedure, 1908, relating to appeals to the Supreme Court sha l, so far as 
may be, apply in the case of appeals under section 118 as they apply in the case of appeals from decrees of a 
High Court - section 118(2) of CGST Act. 
The costs of the appeal shall be at the discretion of the Supreme Court. 
 
Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of 
the Supreme Court in the manner provided in section 117 in the case of a judgment of the High Court i.e. on 
basis of certified copy - section 118(3) of CGST Act. 
34.3 Sums due to be paid notwithstanding appeal  before High Court or Supreme Court 
 
Notwithstanding that an appeal has been preferred to the High Court or the Supreme Court, sums due to the 
Government as a result of an order passed by the National or Regional Benches of the Appe late Tribunal 
under sub-section (1) of section 113 or an order passed by the State Bench or Area Benches of the Appe late 
Tribunal under sub-section (1) of section 113 or an order passed by the High Court under section 117, as the 
case may be, shall be payable in accordance with the order so passed - section 119 of CGST Act. 
Of course, High Court and Supreme Court can grant stay in appropriate cases, in their inherent powers. 
 
34.4 Constitutional remedies in GST 
 
Our Constitution has maintained a balance between powers of Legislature, Judiciary and Executive. A l actions 
of Government are subject to judicial scrutiny of Supreme Court and High Courts, irrespective of provisions of 
any particular statute. These judicial powers are conferred by Constitution itself and hence cannot be curtailed 
by any legislation. Declaration in any Statute that the order shall be final does not affect writ jurisdiction. 
Powers of Supreme Court - Article 136 authorises Supreme Court to grant special leave to appeal from any 
judgment, decree or order in any cause or matter passed or made by any court or Tribunal in India. This is at 
the discretion of the Supreme Court and applications under this Article are termed as Special Leave Petitions 
(SLP) as these can be admitted only with special leave (permission) of Supreme Court. 
Powers of High Court  - High Court, within the territory of its jurisdiction, has powers, vide Article 226 of 
constitution, to issue orders or writs for enforcement of any f undamental ri ght and for any other purpose. 
Article 227 confer powers on High Court of superintendence over a l courts and Tribunals in the territory in 
which the High Court has jurisdiction. Thus, Tribunals in a State are subordinate to the High Court of that 
State and decisions of the High Court are binding on the Tribunal bench sitting in that State. - - In Suprabhat 
Steels v. CEGAT 2002(144)  ELT 500 (Cal HC), it was held that even if Tribunal Bench is located  at 
Kolkata, the Kolkata High Court will not have territorial jurisdiction, when entire cause of action arose outside 
Page 3


CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
 
 
 
 
 
  
 
 
 
 
CHAPTER 34 - Appeal s before Hi gh Court and Supreme Court 
 
 
 
 
 
CHAPTER 34 
 
Appeals  before High Court and Supreme Court 
 
34.1 Appeal to the High Court 
 
Any person aggrieved by any order passed by the State Bench or Area Benches of the Appe late Tribunal 
may f ile an appeal to the High Court and the High Court may admit such appeal, if it is satisfied that the case 
i nvolves a substantial question of law - section 117(1) of CGST Act. 
Time limit for filing appeal - An appeal under section 117(1) shall be f iled within one hundred and eighty 
days from the date on which the order appealed against is received by the aggrieved person. It should be in 
form and manner as prescribed - section 117(2) of CGST Act. 
The High Court may admit an appeal after the expiry of the period of one hundred and eighty days, if it is 
satisfied that there was sufficient cause for not filing the same within that period - proviso to section 117(2) of 
CGST Act. 
High Court  can formulate  the question  - Where the High Court is satisfied that a substantial question of 
law is involved in any case, it shall formulate that question. 
The appeal shall be heard only on the question so formulated, and the respondents sha l, at the hearing of the 
appeal, be a lowed to argue that the case does not i nvolve such question. 
Court can hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated 
by it, if it is satisfied that the case involves such question - section 117(3) of CGST Act. 
Judgment by High  Court  on  question  of law - The High Court shall decide the question of law so 
formulated and deliver such judgment thereon containing the grounds on which such decision is founded and 
may award such cost as it deems fit - section 117(4) of CGST Act. 
High Court can determine any other issue - The High Court may determine any issue which - (a) has not 
been determined by the State Bench or Area Benches; or (b) has been wrongly determined by the State 
Bench or Area Benches, by reason of a decision on such question of law as herein referred to in section 
117(3) of CGST Act - section 117(5) of CGST Act. 
 
Appeal to be heard  by bench  of at least  two judges - When an appeal has been f iled before the High 
Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in 
accordance with the opinion of such Judges or of the majority, if any, of such Judges - section 1117(6) of 
CGST Act. 
Where there is no such majority, the Judges shall state the point of law upon which they di ffer and the case 
sha l, then, be heard upon that point only, by one or more of the other Judges of the High Court and such point 
shall be decided according to the opinion of the majority of the Judges who have heard the case including 
those who first heard it - section 117(7) of CGST Act. 
Code of Civil Procedure applies - Except aforesaid specific provisions, the provisions of the Code of Civil 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
Procedure, 1908, relating to appeals to the High Court sha l, as far as may be, apply in the case of appeals 
under this section - section 117(9) of CGST Act. 
Action on basis of certified copy of High Court - Where the High Court delivers a judgment in an appeal 
f iled before it under this section, effect shall be given to such judgment by either side on the basis of a certified 
copy of the judgment - section 117(8) of CGST Act. 
34.2 Appeal to the Supreme Court 
 
An appeal shall lie to the Supreme Court - (a) from any order passed by the National Bench or Regional 
Benches of the Appe late Tribunal; or (b) from any judgment or order passed by the High Court in an appeal 
made under section 117 in any case which, on its own motion or on an application made by or on behalf of the 
party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be a fit one for 
appeal to the Supreme Court - section 118(1) of CGST Act. 
34.2-1 Hearing before Supreme Court 
 
The provisions of the Code of Civil Procedure, 1908, relating to appeals to the Supreme Court sha l, so far as 
may be, apply in the case of appeals under section 118 as they apply in the case of appeals from decrees of a 
High Court - section 118(2) of CGST Act. 
The costs of the appeal shall be at the discretion of the Supreme Court. 
 
Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of 
the Supreme Court in the manner provided in section 117 in the case of a judgment of the High Court i.e. on 
basis of certified copy - section 118(3) of CGST Act. 
34.3 Sums due to be paid notwithstanding appeal  before High Court or Supreme Court 
 
Notwithstanding that an appeal has been preferred to the High Court or the Supreme Court, sums due to the 
Government as a result of an order passed by the National or Regional Benches of the Appe late Tribunal 
under sub-section (1) of section 113 or an order passed by the State Bench or Area Benches of the Appe late 
Tribunal under sub-section (1) of section 113 or an order passed by the High Court under section 117, as the 
case may be, shall be payable in accordance with the order so passed - section 119 of CGST Act. 
Of course, High Court and Supreme Court can grant stay in appropriate cases, in their inherent powers. 
 
34.4 Constitutional remedies in GST 
 
Our Constitution has maintained a balance between powers of Legislature, Judiciary and Executive. A l actions 
of Government are subject to judicial scrutiny of Supreme Court and High Courts, irrespective of provisions of 
any particular statute. These judicial powers are conferred by Constitution itself and hence cannot be curtailed 
by any legislation. Declaration in any Statute that the order shall be final does not affect writ jurisdiction. 
Powers of Supreme Court - Article 136 authorises Supreme Court to grant special leave to appeal from any 
judgment, decree or order in any cause or matter passed or made by any court or Tribunal in India. This is at 
the discretion of the Supreme Court and applications under this Article are termed as Special Leave Petitions 
(SLP) as these can be admitted only with special leave (permission) of Supreme Court. 
Powers of High Court  - High Court, within the territory of its jurisdiction, has powers, vide Article 226 of 
constitution, to issue orders or writs for enforcement of any f undamental ri ght and for any other purpose. 
Article 227 confer powers on High Court of superintendence over a l courts and Tribunals in the territory in 
which the High Court has jurisdiction. Thus, Tribunals in a State are subordinate to the High Court of that 
State and decisions of the High Court are binding on the Tribunal bench sitting in that State. - - In Suprabhat 
Steels v. CEGAT 2002(144)  ELT 500 (Cal HC), it was held that even if Tribunal Bench is located  at 
Kolkata, the Kolkata High Court will not have territorial jurisdiction, when entire cause of action arose outside 
CA DHRUV AGRAWAL – National Chairman Taxation Committee-All India Confederation of Small & Micro Industries Association  
 
 
jurisdiction of Kolkata. [In this case, property was attached in Bihar]. 
 
In Kusum Ingots v. UOI 2004 AIR SCW 2766 = AIR 2004 SC 2321 = 168 ELT 3 (SC 3 member bench), 
it was held that Delhi High Court will not have jurisdiction simply because Parliament has passed Act in Delhi. 
Unless part of cause of action arises in Delhi, the Delhi High Court will not have jurisdiction. It was also held 
that if original adjudicating authority is at one place while appe late authority is at other place, both High Courts 
will have writ jurisdiction. The reason is that original order merges with appe late order and that order is also 
required to be set aside. 
In West Coast  Ingots v. CCE (2007) 209 ELT 343 (Del HC DB), it was held that High Court will not 
exercise writ jurisdiction only because Tribunal has passed order from bench in Delhi, if significant part of 
action has taken place outside the jurisdiction - same view in Brinda Beverages v. CCE (2009) 237 ELT 658 
(Del HC DB). 
Norms for invoking special powers - Powers to issue high prerogative writs are extraordinary discretionary 
powers and hence are to be exercised sparingly and in fit case, on sound principles of law. Courts will invoke 
writ jurisdiction only in exceptional cases. Thus, when alternate remedy like departmental appeal or ordinary 
civil suit is available, writ jurisdiction will not be norma ly invoked. 
Appeal should be filed even if writ/SLP is filed - Even if writ petition/SLP is f iled, it is highly advisable to 
f ile appeal. The reason is that if SLP/writ is dismissed for any reason, the remedy of appeal might become time 
barred by that time. It is true that in UOI v. West Coast Paper Mills 2004 AIR SCW 838 = 135 STC 265 = 
164 ELT 375 (SC 3 member bench), it was held that if SLP/writ is admitted, correctness of order appealed 
against is wide open. In this case, doctrine of merger applies. In this case, it was held that if SLP is admitted, 
limitation for f iling appeal against order of Tribunal would start after writ was dismissed by High Court. - - 
However, the risk is not worth taking and filing of appeal in time is a must. 
High  Court  can  review its orders  on  merits - High Courts are courts of record under article 215 of 
Constitution of India. Hence, powers of review. Even under Article 226 of Constitution of India (writ powers), 
there is no restriction on powers of review by High Court - CIT v. Meghalaya Steels (2015) 377 ITR 112 
(SC).